Comments on McClennen's “Prudence and Constitutional Rights”

ABSTRACT. In The Calculus of Consent, Buchanan and Tullock argue, among other things, that institutional safeguards are required to ensure maximal benefit for all members of a community against the potential tyranny of the majority. McClennen extends this idea by introducing prudential concerns and argues that they ought to be factored into the decision making that constructs such safeguards. Specifically, McClennen sees the safeguarding of prudential concerns for all members of society as a matter of distribution that should be secured from the random fate of the political process through constitutional means. His method for ensuring the constitutional mandate is to place the responsibility for achieving this result in the hands of the judiciary. I argue that there are two problems with his solution: (1) it is ahistorical; and (2) it assumes the judiciary is without politics.