Fundamental Rights and Institutionalism: Disharmonic Traditions in the American Founding

Scholars of the Constitution typically sit in two major camps when attempting to understand how that hallowed document relates to politics. On one side are scholars who view the Constitution, and the institutional arrangements it creates, as a restraint on the more dangerous tendencies of natural rights and democracy, while on the other side are those who argue that the demands of natural rights and democracy supersede any particular constitutional or institutional strictures. Both sides of this disagreement make frequent appeals to the American founders to show that their view are in fact supported by the Constitution. In truth, both of these traditions were present at the time of the American founding and have influenced the nation’s political development since. This thesis articulates the nature of these two constitutional traditions and draws from primary and secondary sources to show that both existed at the time of the American founding.