Why the U.S. Founders’ Conceptions of Human Agency Matter Today: The Example of Senate Malapportionment

Abstract

This Article links the U.S. founders’ ideas about “human agency”—i.e., their understandings of the link between the individual and the social and political structure—with how they designed the Constitution and, in particular, how they designed the U.S. Senate as a non-majoritarian institution. I mine primary sources to show that although the founders struggled with many disagreements in drafting the Constitution, they shared an amalgam of historically received ideas about human agency derived from both liberal and civic republican traditions. I identify five such ideas and then parse which of them continue to pertain today. I argue that although contemporary and mainstream Western political thought continues to regard individuals’ pursuit of happiness and enjoyment of liberty as essential ends of government, the founders’ views about property and “independence” as prerequisites to having political rights no longer pertain. Yet those views provided the founders’ explicit rationale for the Senate’s anti-democratic design. This, I argue, is an important yet overlooked reason why that design must be rethought today, even though the Constitution purports to make this feature unamendable through a last minute revision arguably extracted under duress.