Promoting the General Welfare: Utilitarianism, Law, and Economics
This chapter represents a kind of watershed. Until now, I have been focusing on the philosophical assumptions and arguments behind three familiar legal theories: original intent, democratic proceduralism, and CLS. The jurisprudence of original intent, I have argued, understands judicial review and constitutional interpretation in terms of the social contract while democratic proceduralism looks to the self-justifying character of democratic processes themselves. In discussing Critical Legal Studies, however, we were led into the different though no less philosophical terrain of rights skepticism and the importance of the rule of law. The remaining chapters view matters from the opposite direction. Instead of beginning with legal theories in order to assess how they understand the purposes of democratic government, I am concerned primarily with exploring the legal and constitutional implications of two familiar political theories, utilitarianism and social contract. As before, however, my most basic claim is that these issues are intimately linked: How we understand judicial review and constitutional interpretation both shapes and is shaped by our philosophical vision of the purposes of government and the justification of democracy.
In addition to establishing justice and securing the blessings of liberty, the Preamble to the U.S. Constitution also speaks of another purpose of government: to promote the general welfare. According to the utilitarian view we are now going to consider, the commitment to welfare is the most fundamental of all the aims of government. Once that is understood and accepted, claims the utilitarian, all the other ideals, including rights, democracy, and the rule of law, can then be derived from that one basic commitment.
One helpful way to think about the differences between utilitarianism and the other positions that were discussed in earlier chapters is in terms of time. Defenders of original intent look backward, to history, claiming political legitimacy flows from the fact that the people consent to the social contract. Judicial review is justi-