One new form of liberalism is a doctrine that might be called Constitutional Welfare Liberalism. It stands in some continuity with the varieties of welfare and equality oriented liberalism that emerged in the Nineteenth Century and which found expression in the U.S. in political movements like the New Deal of F.D.R. and the Great Society of L.B.J. Constitutional Welfare Liberalism differs somewhat from earlier versions of Welfare Liberalism in that it claims to be solidly grounded in the fundamentals of the liberal tradition and of the American Constitution. Advocates of Constitutional Welfare Liberalism would replace what they call the “negative-liberties model” of the Constitutional order with a “benefits model.” They rest their case on an analysis of rights that denies the meaningfulness of the common distinction between negative and positive rights. Some advocates of Constitutional Welfare Liberalism also base their claims on the positive empowerments and ends of government as expressed in the Preamble to the Constitution. It is shown here via an analysis of the negative/positive rights distinction that the distinction is indeed meaningful when understood more accurately than Constitutional Welfare Liberalism theorists do. Likewise it is shown that neither the general character of the Constitution as an empowerment of government, nor the particular goals stated in the Preamble imply the benefits model.

This essay argues that Stoicism is the ancient philosophy most relevant to modern politics and civic education. Its relevance is due not to the advocacy of any specific political system or public policy but to its theory that the human good depends primarily on rationality and excellence of character rather than on material prosperity and productivity. According to Stoicism, all human beings are related to one another in virtue of our communal nature as rational animals. Reflection on the norms of human nature persuaded the Stoics that we all share a common interest in living just and mutually beneficial lives. This principle, though it favors an equitable distribution of goods and services, makes rationality and integrity, rather than material prosperity, the essential values of community and the measure of normative citizenship and lawmaking. Our goal as Stoic citizens is to practice the art of what is always possible or in our power—doing our best to live mutually beneficial and well-reasoned lives—while recognizing that the external success we are naturally inclined to aim at may be frustrated because we live in a world we can never fully control.

It is conventional to distinguish between an old liberalism, with a robust conception of private property and a limited role for government in the economy, and a new liberalism that permits government to override individual property rights in the pursuit of the general welfare. The New Deal is often taken to mark the dividing line between these two forms of liberal governance. But when we focus on property rights through the magnifying lens of Takings Clause jurisprudence, we find that the movement away from strong property rights begins not with the New Deal but in the late 19th century, at what is normally taken to be the peak of constitutionally protected private property. The much-criticized decision in Kelo v. New London (2005) represents, not a break with past doctrine, but rather its logical consequence.

Protecting individual property-holders against expansive state powers of eminent domain runs into a structural conundrum: while categorical restraints on state power limit government's ability to promote important public purposes, an explicitly purposive approach renders all limits on government power (including individual rights) vulnerable to an aggregative calculus. The most plausible response is a two-tier approach: respect for legally established categories in ordinary circumstances, regardless of their aggregate consequences, and consequentialism in circumstances of emergency, when the lives or basic wellbeing of citizens are at stake. Judged against this template, the consequentialism guiding modern takings clause jurisprudence in ordinary, non-emergency circumstances is hard to justify.

While the classical Greco-Roman tradition is not ordinarily thought of as associated with radical individualism, many of the central concerns of such radical individualists as Frédéric Bastiat, Herbert Spencer, Benjamin Tucker, Ludwig von Mises, F. A. Hayek, and Ayn Rand—including their views on human sociality, spontaneous order, and the relation between self-interest and non-instrumental concern for others—are shown to be inheritances from and developments of Platonic, Aristotelian, Epicurean, and Stoic ideas. Hence those working in the classical tradition have reason to explore the radical individualist tradition and vice versa.

The transition from a relatively federal to a relatively centralized constitutional structure in the United States has often been identified with the shift from classical to welfare liberalism as a matter of public philosophy. This article argues against that distinction. The liberal argument for federalism is a contingent one, built on approximations, counterbalancing, and political power. A more federalist constitution is not automatically a freer one on classical liberal understandings of freedom. Neither is a more centralized constitution automatically a better match with the ideals of welfare liberalism. The article sketches a constitutional history of federalism from the founding, through an era in which centralization was aligned with skepticism about liberal constitutionalism (for both meanings of liberal), to an era in which centralization was aligned with increases in liberal freedom (for both meanings of liberal).