Sotirios Barber

If the U.S. Constitution is a liberal Constitution, liberal governments can have a constitutional obligation to secure positive benefits or welfare rights. The original constitutional text describes a government instrumental to the Preamble's abstract ends or goods. Constitutional rights can be reconciled to the text's instrumentalist logic by viewing them as functional to better conceptions of abstract ends among actors who would compensate for their fallibility. The Federalist confirms the instrumentalism of the constitutional text. Conservative writers who treat negative liberties as constitutional ends err in several ways. They assume rational actors would establish a government for the sake of limiting it, and they ignore the positive nature of goods (life, liberty, property) that are the objects of negative liberties. They also fail to see that tax-supported protections for all positive goods, including the objects of negative liberties, must be justified by public purposes.

James E. Fleming’s new contribution to the interpretive debate successfully exposes “new originalist” failures to find defensible middle ground between a Dworkinian approach to constitutional interpretation and the now widely discredited originalism of Raoul Berger. Fleming also exposes the irony of “new originalist” efforts to vindicate democracy and the rule of law. Less persuasive are Fleming’s reasons for optimism about the future of constitutional theory and fidelity to a constitution that seems increasingly beyond reform.

Welfare and the Constitution defends a largely forgotten understanding of the U.S. Constitution: the positive or "welfarist" view of Abraham Lincoln and the Federalist Papers. Sotirios Barber challenges conventional scholarship by arguing that the government has a constitutional duty to pursue the well-being of all the people. He shows that James Madison was right in saying that the "real welfare" of the people must be the "supreme object" of constitutional government. With conceptual rigor set in fluid prose, Barber opposes the shared view of America's Right and Left: that the federal constitutional duties of public officials are limited to respecting negative liberties and maintaining processes of democratic choice. Barber contends that no historical, scientific, moral, or metaethical argument can favor today's negative constitutionalism over Madison's positive understanding. He urges scholars to develop a substantive account of constitutional ends for use in critiquing Supreme Court decisions, the policies of elected officials, and the attitudes of the larger public. He defends the philosophical possibility of such theories while also offering a theory of his own as a starting point for the discussion the book will provoke. This theory holds, for example, that voucher schemes which drain resources from secular public schools to schools that would train citizens to submit to religious authority are unconstitutional; First Amendment issues aside, such schemes defeat what is undeniably an element of the "real welfare" of the people, individually and collectively: the capacity to think critically for oneself.