Thayer, Nagel and the Founders' Design: A Comment

Abstract

The purpose of this essay is to place the essays by James B. Thayer and Robert F. Nagel in the context of the framers' view of human nature. Basically, my argument is that Thayer's view of the role of the judiciary is fully consistent with the framers' views of both human nature and how government is supposed to work, while Nagel's view is starkly at odds with the framers' constitutional theory and design. My essay begins with a description of the framers' view of human nature and proceeds to a discussion of Thayer's view of human nature. In the final section, I discuss Professor Nagel's view of human nature and attempt to show how this view is at odds with the Founders' design.