Constitutional Politics_Constitutional Law

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Yale Law School

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Faculty Scholarship Series Yale Law School Faculty Scholarship

1-1-1989

Constitutional Politics/Constitutional Law

Bruce AckermanYale Law School

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Recommended CitationAckerman, Bruce, "Constitutional Politics/Constitutional Law" (1989).Faculty Scholarship Series. Paper 140.hp://digitalcommons.law.yale.edu/fss_papers/140
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T h e Y a l e L a w JournalVolume 99, Number 3, December 1989

A r t i c l e s

Constitutional Politics/ConstitutionalLaw*Bruce Ackermant

INTRODUCTION: LOOKING INWARD?America is a world power, but does it have the strengthto understanditself? Is it content,even now, to remain an intellectualcolony,borrowingEuropeancategoriesto decode the meaning of its national identity?This was not always a question posed by the American Constitution.When America was a military and economicweakling on the Europeanfringe, it was at the forefrontof constitutionalthought. As it transformeditself into the powerhouse of the West, its leading constitutionalistsbe-came increasingly derivative. Two centuries onward, the study of theAmericanConstitution s dominatedby categoriesthat owe more to Euro-pean than to American thought and experience.Unsurprisingly,this has led to a peculiarly ahistorical kind of theory.

* ? 1989 by Bruce Ackerman.All rights reserved.t SterlingProfessorof Law and Political Science,Yale University. Friends too numerous to men-tion have helped me greatly throughout the decade during which this essay took shape. I am verygrateful.

453


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454 The Yale Law Journal [Vol. 99: 453Since the dominant conceptual frameworkshave not been designed withAmericanhistory in mind, they can hardly be used to reflectfruitfullyondistinctive eaturesof our constitutionaldevelopment.Indeed, many of themost remarkablepartsof the storyare entirely ignored-if they were con-fronted, they would only embarrass European notions that were neverdesignedto take them into account.

To discover the Constitution,we must approach it without the assis-tanceof some philosophicalguide importedfrom another time and place.Neither Aristotle nor Cicero, Montesquieu nor Locke, Harrington norHume, Kant nor Weber, providesthe key. While Americans have bor-rowed much from such thinkers, they have built up a genuinely distinctivepattern of constitutional houghtand practice.Once we have reconstructedthe whole, we shall find it bears comparisonwith the deepest reflectionson the nature of politics offeredup by the greatestof the Greeks or Ro-mans, Germans or English.My interest in this reconstructive nterpriseis not purely intellectual.The Constitutionpresupposesa citizenrywith a soundgrasp of the idealsthat inspire our political practice.As we lose sight of these ideals, theorganizing patternsof political life unravel. If "sophisticated"constitu-

tionalists are blinding themselves to the distinctivelyAmerican aspects ofthe Constitution,this must be a cause for more general concern.Not that the mass of Americancitizens are at the mercyof their intel-lectuals when it comes to understanding heir Constitution.After two cen-turies of civicexperience,the rhythmsof Americanconstitutional ife havebecome second nature for most of us-the two, four, six year electoralcycles,the distinctive nterchangesbetween Congressand President,Presi-dent and Court, Court and Congress,nation and state, politics and law.

Along with these rhythms comes a rough and ready grasp of the animat-ing constitutional deals of Americandemocracy.Nonetheless,the intellectual alienation of opinion leaders takes its toll.Sophisticatedalk gets aroundthat politicalpracticeshavinga deep consti-tutionalpoint are "really" mystifyingrituals that distort the character ofAmericanpolitics. Generations of such talk loosen the popular grasp onthe democraticdeals animating our constitutional ife, increasingthe vul-nerabilityof these ideals at future moments of crisis.The costs of intellectual alienation are no less evident when we turnfromthe mass of citizens to the caste of Americanlawyers andjudges. AsTocquevillesaw early on, this group has taken on a special responsibilityin sustaining the Constitution'soperation on a day-to-day basis. As weshall see, practicinglawyers and judges have done a better job than onewould supposeif one focused on the leading lightsof the nation'suniversi-ties. Without giving the matter much thought, they have built up some-thing I will call a professionalnarrative,a story about how the Americanpeople got from the Founding to the Bicentennial.This narrative colors


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1989] ConstitutionalPolitics 455the constitutionalmeanings lawyers and judges give to the particularproblems hat press beforethem for decision. It contains,moreover,funda-mental insights that purveyorsof constitutionalsophisticationwould dowell to ponder. But, preciselybecause this ponderinghas not been goingon, the existingprofessionalnarrativeexpresses these insightsin ways thatfail to capture their historicalreality or constitutionalcomplexity.If con-stitutional theorists turned their attention from Locke to Lincoln, fromRousseau to Roosevelt,they might contributepositivelyto the constructionof a betterprofessionalnarrative-one that is truer to the historicalfactsand to the constitutional deals that animate our continuing experimentinself-government.

Behold, then, a pretty picture: an America in which a rediscoveredConstitution s the subjectof an ongoingdialogueamong scholars,profes-sionals,and the people at large;an Americain which this dialogueallowsthe citizenry, and its political representatives,an ever-deepeningsense oftheir historical identity as they face the transformingchallenges of thefuture. Lest I be mistakentoo quickly for Pangloss, let me say that, evenif this project succeededbeyond my wildest hopes, it would not leadstraight-wayto Utopia. As we discoverthe distinctivefeatures of the Con-stitution, we will find much that is imperfect,mistaken, evil in its basicpremises and historical development.Never forget that James Madisonwas a slaveholderas well as a great politicalthinker.And who can imag-ine that our Constitution'speaceful coexistencewith injusticecame to anend with Emancipation? We cannot remain comfortablewith the statusquo; the challenge is to build a constitutional order more just and freethan the one we have inherited.

It hardly follows that we can build a better future by cutting ourselvesoff from the past. Especially when American public discourseconstantlytreatsthe constitutionalpast as if it containedvaluableclues for decodingthe meaning of our political present. No single essay-no singlemind-can hope to do justice to the centuries of experience that serve asthe historicalfoundation of our presentpatterns of constitutionalthoughtand practice.All I can do here is to sketch the outlines of a largerwork inprogressthat representsmy best effort.'

This essay will have three parts. The first confrontsthe remarkablebreach between theory and practice that burdens our present constitu-tional situation.While our civic practiceremainsrootedin the distinctivepatternsof the Americanpast, sophisticatedconstitutional hought has in-creasinglysoughtto elaboratethe genius of American institutionswith theuse of theoriesgeneratedelsewhere-to the point where these rival theo-ries are more familiar in the universitiesthan the one I shall be elaborat-1. B. Ackerman, Discovering the Constitution (unpublished manuscript on file with author)[hereinafterDiscoveringthe Constitution].


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456 The Yale Law Journal [Vol. 99: 453ing. Thus, it seems wise to begin by comparingthe distinctiveAmericanmatrix-which I will call dualistic democracy-with these more familiaracademic rivals.After glimpsing an organizing pattern in constitutional thought andpractice,the secondPart confrontsthe professionalnarrativemodernlaw-yers use to express this pattern. As we shall see, dualistdemocracyplacesa specialvalue on the politicalconclusionsreachedafter an extraordinaryprocessof popular mobilization,debate, and institutional testing that fi-nally culminates in a citizen-movementearning the authority to makehigher law in the name of We the People of the United States. This em-phasisis taken up by professional awyersandjudges in the story they tellthemselvesabout the constitutionalpast. Every day in the nation'scourt-roomsand assembly-halls, awyers, legislators, and judges look backwardto a few great turning points in our history for guidance. The lessonsthese men and women take from the great constitutionaltransformationsmarkedby the Founding,Reconstruction,and the New Deal deeply shapetheir understandingof the conflicting constitutionalarguments swirlingaroundthem.All practicingconstitutionalists ecognizethe significanceof all three oftheseturning points.There is, however, a big difference n the storiestheytell about each of them. The prevaling patterns of professionalnarrativedo not encourage awyersandjudges to reflectupon the things the Found-ing, Reconstruction,and the New Deal have in common.Instead,each ofthese three great jurisgenerative2events is cabined by a set of lawyerlycategoriesthat emphasize how different one episode is from the next.Of the three, the Founding is treated as if it were the most radicalbreak with the past. Almost all modernlawyersrecognizethat, in propos-ing a new Constitutionin the name of We the People, the PhiladelphiaConventionwas acting illegally under the terms establishedby America'sfirst formal constitution-the Articles of Confederationsolemnly ratifiedby all thirteen states only a few years before. Thus, while the thirteenthArticle of Confederationrequired amendments to gain the unanimousconsentof all thirteen state legislatures, Article Seven of the Federalists'proposedConstitutionblithely excluded state legislatures fromany role inratification, and went on to assert that the approvalof special constitu-tional conventionsmeeting in only nine of the thirteen states sufficed tovalidatethe Philadelphia Convention'seffort to speak for We the Peopleof the United States.3

2. See Cover,The SupremeCourt 1982 Term-Foreword: Nomos and Narrative, 97 HARV. L.REV. 4,11 (1983).3. See, e.g., S. LEVINSON, CONSTITUTIONAL FAITH 130-31 (1988); Kay, The Illegality of theConstitution,4 CONST. COMMENTARY 57 (1987); Kay, The Creation of Constitutions in Canadaand the United States, 7 CANADA-UNITED STATES L.J. 111, 124-36 (1984). But see Amar, Phila-delphia Revisited:Amending the ConstitutionOutsideArticle V, 55 U. CHI.L. REV. 1043, 1047-54(1988). ProfessorAmar concedesthat ratificationof the Constitution"obviouslyviolates Article XIII


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1989] Constitutional Politics 457Things are very different when the subject turns to the Civil WarAmendments.Here modern law-talk exhibits a sharp dichotomybetween

substance and procedure. Substantively,everybody recognizes that theseamendmentsprofoundlytransformedpre-existingconstitutionalprinciple.If, however,we turn from the substanceof the amendments o the processby which they became part of our higher law, a remarkable silence de-scends on the legal community. Modern lawyers simply assume that theReconstructionRepublicansobedientlyfollowedthe formal tracks for con-stitutionalamendment established by the Federalistsin Article Five. Ac-cording to received opinion, the Civil War Amendmentsarejust that: or-dinary amendmentswhich, like all the others, owe their validity to the"rule of recognition"set out in the text of the 1787 Constitution.To putthe point in a formula: While the professionalnarrativerecognizesthatReconstructionwas substantively creative, it supposes that it was proce-durally unoriginal.Even this much originalityis denied the New Deal. Though everybodyrecognizes that the 1930's mark the definitive constitutional triumph ofactivistnationalgovernment, hey tell themselvesa storywhich denies thatanything deeply creativewas going on. This view of the 1930's is obtainedby imagining a Golden Age in which Chief Justice Marshall got thingsright for all time by propounding a broad construction of the nationalgovernment's awmaking authority. The period between Reconstructionand New Deal can then be viewed as a (complex) story about the fallfromgrace-wherein most of the Justices (not Holmes, of course) strayedfrom the path of righteousness and imposed their antidemocratic aissez-faire philosophyon the nation through the pretext of constitutional nter-pretation.Predictably, these acts of judicial usurpation set the judges atof the pre-existingArticles of Confederation,"but suggests that the Articles should be viewed as atreaty whose obligationshad lapsed as a result of state violations, and hence that the Conventionwasnot acting illegally in calling upon nine or more states to secedefrom the Confederation.While someFederalistsundoubtedlyheld this view in private, even they were reluctant to rely on it in public.CompareTHE FEDERALIST No. 40, at 251, 254 (J. Madison) (C. Rossiter ed. 1961) (illegalityexplic-itly conceded)with id. No. 43, at 279-80 (J. Madison) (noting that perhapsap, also" (emphasis inoriginal)justification for ratificationprocedure"may be found" in breach-of-treatyheory). And, asAmarrecognizes,many anti-Federalistsdeniedthat the Articlespledge of "perpetual"Union couldbeevadedso easily after so short a trial. See Art. XIII, reprinted in M. FARRAND, THE FRAMING OFTHE CONSTITUTION OF THE UNITED STATES 211, 223 (1913). Overall, I find ProfessorKay's argu-ments more persuasivethan ProfessorAmar's.At the very least, Amar'sconfidence in the legality ofthe Convention's end-run around the state legislatures was not shared by the Federalists them-selves-who recognizedthat their "legal" argument for secession would not get them very far inpopulardebate,and that they would have to invoke other, more fundamental,principles of popularsovereignty f they hoped to legitimatetheir act of constitutionalcreation.Indeed, the rest of Amar's article usefully emphasizes how important the principles of popularsovereigntywere to the revolutionarygeneration-though, once again, I think he goes overboard nsuggesting that the Convention'scall for ratification by state conventions,rather than state legisla-tures, was legal underthe laws of all thirteenstates.While some states,like Massachusetts,had givengreat authority to constitutionalconventions in their domestic law, see Amar, supra, at 1049-51,others, like Rhode Island, were much more backwardin concedingthat constitutionalconventions,meeting in the name of the People, might legally modify pre-existing state charters. See Luther v.Borden,48 U.S. (7 How.) 1 (1849).


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458 The Yale Law Journal [Vol. 99: 453odds with more democratic nstitutions,which acutely perceivedthe fail-ure of laissez-faire to do justice to an increasingly complex and interde-pendent world. The confrontation between the New Deal and the OldCourt serves as the climax in a traditionalmorality play of decline, fall,and resurrection.Only Justice Roberts'"switch in time," and the depar-ture of the worst judicial offenders, permittedthe Court to expiate itscountermajoritarianins without permanentinstitutionaldamage. If onlythe Justices had not strayed from Marshall's original path, perhaps allthis unpleasantnesscould have been avoided!

As always, this basic story line invitescountlessdisagreementsabouttheprecise characterof the Marshallian vision, the precise scopeof the latter-day aberrations.For present purposes,the criticalpoint is simple enough:In contrastto the first two turning-points,modernlawyers do not describeeither the substantiveor procedural aspects of the New Deal by tellingthemselves a tale of constitutionalcreation. Instead, the triumph of theactivistwelfare state is mediatedby a myth of rediscovery-it is as if theFounding Federalists had foreseen the works of Franklin DelanoRoosevelt and would have been greatly surprisedto learn that the strug-gles of the first third of the twentieth century were necessary to gain thewelfare state's constitutional egitimation.

Founding Federalists-oIllegal Constitution;ReconstructionRepubli-cans-a- Formal Amendments;New Deal Democrats-m' udicial Redis-coveryof Ancient Truths. This schema suggestsa subtle, but unmistaka-ble, decline in the constitutionally generative capacitiesof the Americanpeople. Apparently, We the People have never again engaged in thesweeping kind of critique and creation attemptedby the Founding Feder-alists. While we have made substantiverevisionsin the original structure,we have never again gone so far as to revise the very processof constitu-tional revision. A similar loss of energyis implied by the narrative'smove-ment from the nineteenth to the twentieth centuries:While the Recon-struction Republicans gained the consent of the American people tofundamentalchanges in their pre-existing substantive principles, appar-ently the sweeping transformationswon by the New Deal Democratsrep-resentednothing more than a return to the wisdom of the early Founders.

I mean to question this core interpretiveschema. Despite its familiarity,it is built on sand. Part Two presents a two-stage critique. First, it chal-lenges the view that the Civil War Amendmentswere proposed and rati-fied in strict compliance with the rules of Article Five. Instead, theRepublicanstransformed he higher lawmaking system itself in their suc-cessful struggle to gain constitutional authority for their transformativeintiatives.The new Republican process was far more nationalistic thanthe one describedby the Federalists in the rules of Article Five. Ratherthan relying exclusively on a Federalist dialogue between assemblies on


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1989] Constitutional Politics 459the national and state levels, the Republicans gave Congress, the Presi-dent, and the Court new roles in the evolvinghigher lawmakingsystem.

Once we rediscover he radical characterof the Republicans'revisionofour amendmentprocedures,we can move the critique of the reigning pro-fessional narrative to a secondstage. Here we use the reviseddescriptionof Reconstruction o gain a new perspectiveon the next great constitu-tional transformation:he struggle between the RooseveltPresidencyandthe Old Courtthat culminated n the legitimationof the activistregulatorystate.Ratherthan disguise it with a myth of rediscovery,we shall begin tosee it as a twentieth-centuryvariationon nationalisticthemes first workedout in the 1860's. Like the ReconstructionRepublicans, the New DealDemocrats amended the Constitutionby provokinga complex constitu-tional dialoguebetween the voters at large and institutionsof the nationalgovernment,a dialogue that ultimatelysubstitutedfor the more federalis-tic processesof constitutionalrevisiondetailedin Article Five. In contrastto the 1860's,however, this exercisein nationalisticrevision was not inter-ruptedin mid-streamby the assassinationof a President and the substitu-tion of a Vice-President who defected from the transformativecoalition.As a consequence,the New Deal Democratscould work out a model ofPresidential leadership in a far more elaborateway than could their Re-publican predecessors.

Part Two, in short, denies the need to continuetelling ourselves a pro-fessional narrativein which we cast ourselvesas the epigones of bygoneeras of constitutionalcreativity. By confronting he originaldocuments eftto us by the Founding Federalists,ReconstructionRepublicans, and NewDeal Democrats,we can gain the resources to tell ourselves a differentstory-one in which the dualistic project in higher lawmaking begun atthe Founding was creatively adapted,time and time again, by Americansof latergenerationsas they struggledover, and sometimeswon, the consti-tutional authority to speak in the name of We the People. To jargonize:Since the receivednarrativerecognizesonly two greatjurisgenerativeerasin our constitutionalhistory, I shall call it a two-solutionnarrativeandurge its replacementby a three-solutionnarrativewhich recognizes thatthe projectof constitutionalpolitics has had its transformativeriumphs inthe twentiethcenturyand continues, both in victoryand defeat,onward tothe presentday.

Part Three sketches the way this three-solutionnarrative provides anew framework for understanding he modern Supreme Court. The keyidea here is synthetic interpretation. We are familiar enough with theproblem,if not the term, as we puzzle over the relationshipbetween thetransformations n publicvalues wrought by the Civil War Amendments.Under any interpretationof these great texts, they destroyed a host ofeighteenth-centurypremises concerning slavery, federalism, and citizen-ship. However coherent the Founding scheme of government may have


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460 The Yale Law Journal [Vol. 99: 453been before the War, the old systemwas fragmentedby the new national-istic, libertarian,and egalitarian affirmationsproclaimedby the Republi-cans in the name of the People. While so much was always clear, it wasquite anothermatter to synthesize new and old into a coherentdoctrinalstructure.Preciselywhich fragmentsof the Founding order were now in-consistentwith the new Republicanconstitution?Which aspects might besaved if they were reinterpreted n the light of the new Republican affir-mations? From its first encounter with these questions in the Slaughter-house Cases4of 1873, the Court has self-consciously struggled with thesyntheticproblemsinvolved in integratingFounding (time one) and Re-construction(time two) into a principled doctrinal whole. Perhaps themost famous modern syntheticproblemis raised by Hugo Black's claimthat the FourteenthAmendment(time two) made the Bill of Rights (timeone) binding on the states.5 But there are many other issues that raisesimilar questions.I will invite you to apply the lessons you have learned from these syn-thetic exercises to analogousproblemsthat arise as soon as one views theNew Deal as a creative constitutionalachievementthat transformedcon-stitutional premises as radically as Reconstructionhad two generationsbefore. Once this three-solutionnarrative s accepted,the familiareffort atone-two synthesiswill seem only one facet of a larger interpretiveenter-prise left to the courts in the wake of the New Deal's affirmationof ac-tivistnationalgovernment. n addition to the continuing interpretiveeffortto make sense of the relationshipbetween Founding and Reconstruction,judges-and the rest of us-must also confronttwo other sides of a syn-thetic triangle left to us in the aftermathof the New Deal. On one side,thereis the one-three problem:What is the relationship between the NewDeal's affirmationof the activistwelfare state and the Founding ideals oflimitedgovernmentand individualrights?The final side of the triangle isdefinedby the two-three problem:how to understand he relationship be-tween New Deal welfarism and the egalitarian and libertarianprinciplesannouncedduring Reconstruction?

These basic interpretivequestions cannot be stated cleanly within thereigning two-solution narrative, which pretends that John Marshallwould have had no constitutionalproblemsvalidating the National Indus-trial RecoveryAct.' Since the professionalnarrativeasserts that there wasnothingnew about the New Deal, it cannot self-consciouslyconfront theinterpretivedifficulties involved in synthesizing the (nonexistent) newprinciplesof the 1930's into the fabric of our higher law. Despite the lack4. 83 U.S. (16 Wall.) 36 (1873).5. See Adamson v. California,332 U.S. 46, 68-69 (1947) (Black, J., dissenting).6. But see Ogden v. Saunders,25 U.S. (12 Wheat.) 321, 332 (1827) (Marshall, C.J., dissenting).For some usefully revisionisthistoriography, ee J. NEDELSKY, PRIVATE PROPERTY AND THE LIM-

ITS OF AMERICAN CONSTITUTIONALISM (forthcoming1990).


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462 The Yale Law Journal [Vol. 99: 453ously reached by the People. If they wish to enact laws that overrulepre-viously established principles of higher law, elected politiciansmust taketo the specially onerous obstacle course provided by a dualist constitutionfor this purpose. Only if they succeed in mobilizing their fellow citizensand gaining persistent popular support, despite opponents' repeated ef-forts to block their initiatives, do political leaders finally earn the author-ity to proclaimthat the People have changedtheir mind and have giventheir governmentnew marching orders.Such a brief statement raises more questions than it answers. One setinvolvefundamental ssues of institutionaldesign. First, there is the designof the higherlawmaking system:How to organizea processthat will reli-ably markout the rare occasions when a politicalmovementrightlyearnsthe special recognition accordeddecisions made by We the People aftermobilizeddeliberation?Second,there is the design of normal lawmaking:How to create incentivesfor elected officials to engage in the kind of pub-lic-spiriteddeliberation that will best serve the public interest in dailylawmakingand administration?Third, there is the design of preservationmechanisms:How to preservethe considered udgmentsof the mobilizedPeople from illegitimate erosion by normal constitutionalgovernment?

And then there are questions that transcend issues of institutional de-sign: Is dualist democracya good form of government for America? Thebest? If not, what's better? This Part does not aim for final answers. Itwill be enough to describe how the very questions provoked by dualisttheory suggest different inquiries from those motivatedby theories of theAmericanConstitutionnow dominant in the academy.Although each aca-demic competitor differs from dualism in a distinct way, it may help tobegin by noting the one thing they have in common. For all their luxuri-ant variety, they all ignore the special importance the dualist interpreta-tion places on constitutional politics8-by which I mean to describe theseries of political movementsthat have, from the Founding onward, triedto mobilize their fellow Americans to participate in the kind of engagedcitizenship that, when successful,deservesto carry the special authority ofWe the People of the United States.But let me be more specific.

B. Monistic DemocracyOf the modernschools of constitutionaltheory, the monistic democratshave the most impressive pedigree: Woodrow Wilson,9 James Thayer,108. See id. at 1017-31.9. W. WILSON, CONGRESSIONAL GOVERNMENT (1885); W. WILSON, CONSTITUTIONAL Gov-

ERNMENT IN THE UNITED STATES (1911).10. Thayer, The Origin and Scope of theAmericanDoctrine of ConstitutionalLaw, 7 HARV. L.REV. 129 (1893).


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1989] ConstitutionalPolitics 463Charles Beard,"1Oliver Wendell Holmes,12Robert Jackson,'3 AlexanderBickel," John Ely,15 and many other distinguished thinkers and doershave played importantroles, over the course of a century, in making thisthe dominantopinion among serious constitutionalists oday. As with allreceivedopinions,complexitiesabound.16But at its root, the monist idea isvery simple:Democracyrequires the grant of plenary lawmakingauthor-ity to the winners of the last general election-so long, at least, as theelectionwas conductedunder free and fair ground rules and the winnersdo not seek to use their power to prevent the next free and fair election.This monisticidea motivates,in turn, a critical institutionalconclusion:During the period between elections, any institutional check upon theelectoralvictors is presumptivelyanti-democratic.For sophisticatedmo-nists, this presumptiondoes not necessarilyimply a flat condemnationofall checks on the currentlegislativemajority.Perhaps certainchecksmaypreventthe victors from refusingto call the next scheduledelection; per-haps others arejustified by a richerappreciationof the social and politicalpreconditions or a truly "free" or "fair" electoral process. While theseexceptions may have great practicalimportance, monists refuse to allowthem to obscure the fundamentalpoint: When the Supreme Court, oranybodyelse, sets about to invalidate a statute, this action suffers from a"countermajoritarianifficulty"17which must be squarely confrontedbyany thoughtfulcitizen who considershimself a democrat.In the work of this school, the broodingomnipresence s (an idealizedversion of) British parliamentarypractice-which demonstrates, at thevery least, that monistic democracy is no pipedream. For more than acenturynow, the Prime Minister has won her office after a relatively fairelection. Barring exceptionalcircumstances, he House of Commonshasgiven its unswervingsupport to the proposals of Her Majesty's Govern-ment. If the Peopleof GreatBritain do not like what's going on, they willreturn the Opposition at the next election.Until that time comes, neitherthe House of Lords, nor the Queen, nor the courts try seriouslyto under-mine the legislativedecisions made by a majority of the Commons.So far as the monist is concerned,this British design captures the es-sence of democracy.The problem posedby America is its failureto followthe trans-Atlanticmodel. Rather than granting a power monopoly to asingle, popularly-electedHouse of Representatives, he Americanstolerate

11. C. BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITEDSTATES (1913).

12. Lochner v. New York, 198 U.S. 45, 74-76 (1905) (Holmes, J., dissenting).13. R. JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY (1941); Railway Express Co. v.New York, 336 U.S. 106, 111 (1949) (Jackson, J., concurring).14. A. BICKEL, THE LEAST DANGEROUS BRANCH (1962).15. J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980).16. For a balanced statement of the monist view, see J. CHOPER, JUDICIAL REVIEW AND THENATIONAL POLITICAL PROCESS 4-59 (1980).17. For the classic statement of this "difficulty," see A. BICKEL, supra note 14, at 16-23.


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464 The Yale Law Journal [Vol. 99: 453a great deal of insubordination rom branches whose electoralconnectionis suspect or nonexistent. While the Senategets its shareof the lumps, theprincipalobject of monisticscorn is, of course,the SupremeCourt. Who-ever gave Nine Old Lawyers the authorityto overrule the judgmentsofour electedpoliticians?As I have suggested,there are monistic answersto this question.Thus,constitutionalconservativeslike Alexander Bickel,18 centrists like JohnEly,"9and progressives ike Richard Parker" have all proposedroles forthe Supreme Court that operate within monistic premises. For presentpurposes, an analysis of monistic solutions is not as important as theframeworkwhich makes the "countermajoritarianifficulty"seem so im-portant. So far as the dualist is concerned, he monist begs a big questionwhen he asserts that the winner of a fair and open election is entitled torule with the full authority of We the People. While rule by electoralvictors is surely to be preferredto an authoritarian putsch by electorallosers, the dualist denies that all statutesgaining the supportof a legisla-tive majority n Washington D.C. represent the considered udgment of amobilizedmajorityof Americancitizens.It followsthat the dualist does not view everyAmericandeparturefromthe British parliamentarymodel as if it sufferedfrom a "countermajori-tarian difficulty"threatening the democratic legitimacy of the Constitu-tion. Instead, she can see a profoundlydemocraticpoint to some of themost distinctivefeaturesof American practice.For her, the most funda-mental fact about our system is that, in contrast to British-stylemonism,the Constitutionestablishesa two-track law-makingsystem.If our electedpoliticianshope only to win normal democratic egitimacy for an initia-tive, they are directed down the normal lawmakingpath and told to gainthe assent of the House, Senate, and President in the normal ways. If,however, they hope for higher lawmaking authority, they are directeddown a speciallyonerouslawmaking path-to be discussedin Part II ofthis essay. Only if a political movement successfullynegotiates the specialchallenges of the higher lawmakingsystem can it rightfully claim that itsinitiative represents the consideredjudgment of We the People of theUnited States.Once the two-track character of the system is recognized, the dualistcan propose democratic nterpretationsof many institutional featuresthatendlessly puzzle the monist. Most obviously, all the time and effort re-quired to push an initiative down the higher lawmaking track would bewasted unless steps were taken to preventfuture normal politicians fromenacting statutes that impugned a successful movement's higher law

18. A. BICKEL, supra note 14; A. BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS(1970).19. J. ELY, supra note 15.20. Parker, The Past of Constitutional Theory-And Its Future, 42 OHIO ST. L.J. 223 (1981).


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1989] ConstitutionalPolitics 465achievement.If future politicians can so easily ignore such successes, whywould any mass movementever take the trouble to overcomethe specialhurdles placed on the higher lawmaking track?To maintainthe integrityof higher lawmaking, all dualist constitutionsmust provide for one or more institutions to dischargea preservationistfunction. These institutionsmust effectivelyblock efforts to repeal estab-lishedconstitutionalprinciple by the simple expedientof passinga normalstatute. They must force the reigning group of electedpoliticiansto take tothe higher lawmakingtrack if it wishes to question the judgments previ-ously made in the higher law accentsof We the People.

It follows that the dualist will begin his encounterwith the SupremeCourt froma very differentperspective han the monist.The monist treatsevery act of judicial review as presumptivelyanti-democratic,and strainsto save the Supreme Court from the "countermajoritarian ifficulty" byone or anotheringenious argument. In contrast,the dualist sees the dis-charge of the preservationist unction by the courts as an absolutelyessen-tial part of a well-ordered democratic regime. Rather than threateningdemocracy by frustratingthe statutory demands of the political elite inWashington,D.C., the courts serve democracyby protecting he hard-wonjudgmentsof a mobilized citizenry against fundamentalchange by politi-cal elites who have failed to establish the requisitekind of mobilizedsup-port from the citizenry at large.This is not to say that any particular decisionby the modern SupremeCourt can be justified in preservationistterms. Before getting down tocases, we will have to consider the special problemsinvolvedin interpret-ing a Constitutionwhose basic institutional and substantivepremises havebeen transformed,and transformedagain, by Americansduring the first

two centuriesof its existence. The key point is that dualists cannot dismissa good-faith effort by the Court to interpret the Constitution as "anti-democratic" imply becauseit leads to the invalidation of normal statutes.Instead,thejudicial effort to look backwardand interpret the great higherlawmaking achievementsof the past seems an indispensable part of thelarger dualist project of distinguishing the will of We the People of theUnited Statesfromthe acts of We the Normally Elected Politicians of theUnited States.C. Rights Foundationalists

In confronting he monistic school of constitutionaltheory, the dualist'smain objectis to break the tight link that monists have managed to con-struct between two distinct ideas: the idea of "democracy,"on the onehand, and the idea of "parliamentary overeignty"on the other. Like mo-nists, dualists are democrats-they believethat the ultimate constitutionalauthorityin America is the People of the United States. They disagree


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466 The Yale Law Journal [Vol. 99: 453only about how easy it should be for normally elected politiciansto claimthe full authorityof We the People.

In contrast, he primacy of popularsovereignty s directlychallenged bya second modern school. These theorists do not completelydeny a placefor popular government in their scheme of constitutionalvalues; theircommitment to democracy is, however, constrainedby an even deepercommitment to fundamental rights. Unsurprisingly, members of thisschooldifferwhen it comesto identifyingthe rights that are fundamental.Conservatives, ike Richard Epstein, emphasize the foundationalrole ofproperty rights;2"iberals, like Ronald Dworkin, emphasize each individ-ual's right to be treated as an equal and autonomousmoralagent;22 ollec-tivists, like Owen Fiss, stress the rights of disadvantagedgroups to equaltreatment.23These transparentdifferencesshould not blind us to the ideathat binds these disparate positions together.Whateverrights are Right,membersof this schoolagree that the AmericanConstitution s concerned,firstand foremost,with their protection.Indeed,the whole point of havingrights is to trumpdecisionsrenderedby democratic nstitutions that other-wise have the legitimate authorityto define the collective welfare. To em-phasize this common thread, I shall call this group rights foun-dationalists.

As with the monists, this school is hardly a trendy creationof the mo-ment. There is, however, an interesting difference between the lineageswhich the two schools construct for themselves.While the monists referbackto a seriesof American thinkers and doers from Wilson and Thayerto Frankfurterand Bickel, the foundationalists eemto favorphilosophicalwriters further removedfrom the local action-with Kant (via Rawls24)and Locke (via Nozick25) presentlyserving as the most important sourcesof inspiration.The question for us, though, is not the philosophicaldepthof the competingfoundationalists,but the way foundationalistsas a groupdiffer from the more democraticschools we have considered.

Begin with the monists. I think it is fair to say that they are hostile torights, at least as the foundationalistsunderstandthem. Indeed, it is pre-cisely when the Supreme Court begins to invalidate statutes in the nameof fundamentalrightsthat the monistbegins to worry about the "counter-21. See R. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN

(1985).22. See R. DWORKIN, TAKING RIGHTS SERIOUSLY 131-49 (1978); R. DWORKIN, LAW'S EMPIRE355-99 (1986).23. See Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFFAIRS 107 (1976).CatharineMacKinnon has more recentlydeveloped and deepened this group-orientedperspective n

SEXUAL HARASSMENT OF WORKING WOMEN (1979), and TOWARD A FEMINIST THEORY OF THESTATE (1989).

24. See Rawls, Kantian Constructivism n Moral Theory,77 J. PHIL. 515 (1980).25. See R. NOZICK, ANARCHY, STATE AND UTOPIA (1974).


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1989] ConstitutionalPolitics 467majoritariandifficulty" that renders the Supreme Court presumptivelyillegitimate."

This "difficulty"does not seem so formidable to the fourndationalist.She is more impressedby the fact that even a democratic egislaturemightendorse any number of oppressiveactions-establish a religion, authorizetorture or . . . ; and when such outrages occur, the foundationalist insiststhat courts intervenedespite the breach of majoritarianprinciple: Rightstrumpdemocracy, o far as she is concerned.Provided,of course,that theyare the right Rights.And there's the rub. While some rights-orientedtheorists do not seemoverlyimpressedwith the perils of arbitrariness nvolvedin the identifica-tion of rights, this anxiety induces more thoughtfulmembersof the schoolto recur to great philosophers ike Kant and Locke in an effort to under-stand the Constitution.If the Constitutionmay properly be construedtoallow judges to trump democracy n the name of Rights, should not theo-rists aid in the processby elaborating he constitutional mplicationsof themost profoundreflections on rights available in the Western tradition?For the monist, however, the foundationalist's urn to the Great Booksis yet anothersymptom of her anti-democraticdisease.Whatever the phil-osophicalmerit of the resultingspeculations nto the natureof our Rights,the foundationalist'sdiscourse s invariablyesoteric-involving encounterswith authorsand doctrinesthat most college-educatedpeople successfullyavoidedduring their most academicmoments.This elitist talk of Kant andLockeonly emphasizesthe illegitimacyinvolved in removingfundamentalquestions from the democraticprocess.Such monisticobjections,of course,hardly convincethe foundationalist.They only generate further anxiety about the ease with which monisticdemocracycan be swept aside by obscurantismand demagogy.And so thedebateproceeds,with the two sides talking past one another:Democracy/Fundamental Rights/Demo . . . on and on, point and counterpoint, withall the talk changing few minds.How does the introductionof dualismchange the shape of this familiarconversational ield? By offering a frameworkwhich allows both sides toaccommodatesome-if not all-of their concerns. Once again, the basicmediatingdevice is the dualist's two-track system of democratic awmak-ing. It allows an important place for the foundationalist'sview of "rightsas trumps" without violating the monist'sdeeper commitmentto the pri-macyof democracy n the scheme of constitutionalvalues. To see how theaccommodationworks, suppose that a rights-orientedmovement took tothe higher-lawmaking rack and successfullymobilized the People to en-

26. Not thatmonistsnecessarilyoppose all exercisesof judicial review.As I have suggested,mem-bers of this school have been quite ingenious in justifying the judicial protectionof one or anotherright as instrumentalfor the ongoingdemocraticfunctioning of the regime. See, e.g., J. EL.Y,supranote 15.


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468 The Yale Law Journal [Vol. 99: 453dorse one or another Bill of Rights. Given this achievement,the dualistcan readily endorse the judicial invalidationof later statutes that under-mine these rights, even when they concernmatters, like the protectionofpersonalfreedomor privacy,that have nothingmuch to do with the integ-rity of the electoral process so central to monistic conceptionsof democ-racy. For, as we have seen, the dualist believes that the Court furthersthecauseof democracywhen it preserves hese rightsagainsterosion by polit-ically ascendantelites who have yet to mobilize the People to supporttherepeal of preestablishedhigher law. Thus, unlike the monist, the dualistwill have no trouble supporting the idea that rights can properly trumpthe conclusions of normal democraticpolitics. She can do so, moreover,without the need for non-democraticprinciples of the kinds preferredbythe rights foundationalist.Thus, the dualist can offer a deeper reconcilia-tion of democracyand rights to those who find a certain amountof truthin both sides of the point/counterpoint that had previously been elabo-rated in the dialogue between monists and foundationalists.

Not that this reconciliationwill prove satisfactory o all membersof thepreviously contendingschools.27The problem for the committed founda-tionalist, unsurprisingly, s the insufficientlydeep foundationsthe dualisthas built for the protectionof rights. Granted,concedesthe foundational-ist, the dualist will applaud the judicial protectionof rights if a warrantfor this special treatmentcan be found in priorsuccessful higher lawmak-ing activity.But that is an awfully big "if." What if the People have notadopted the right Bill of Rights? Should the Constitutionthen be con-struedin ways that allow the statutoryperpetrationof injustice?

Dualists and foundationalistscontinue to answer this question differ-ently. For the dualist, constitutionalprotectionof rights depends on aprior democraticaffirmationon the higher lawmaking track. To put thepoint in a single line:The dualist'sConstitution s democratic irst, rights-protectingsecond. For the committed foundationalist,this priority is re-versed. The Constitutionis first and foremostconcernedwith the protec-tion of the right Rights; it is only after these rights-constraintshave beensatisfied that We the People are constitutionallyauthorizedto work theirwill.

This theoretical disagreement has many practical implications asfoundationalistand dualist debate the substanceof modern constitutionaldoctrine. This is not the place, though, to get into these vital doctrinaldetails. The question is whether the dualist can advancesome very gen-eral argumentthat will defeat any and all foundationalist nterpretationsof our existing constitutionalarrangements.My answer is yes; moreover, the source of this general argument

27. I have consideredthe complaintsof the die-hard monist elsewhere, see Storrs, supra note 7,and so will focus here only on the objectionsof the strong foundationalist.


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1989] Constitutional Politics 469should, by now, begin to seem familiar.As in the case of our earlier con-frontationwith the monist, it is the designof the Americantwo-track law-making systemthat serves as the key. Just as the monist proved incapableof accountingfor the very existence of a higher lawmaking track, so thefoundationalist has trouble accounting for an important fact about theparticular design of the American higher lawmaking system.The fact is that our Constitution has never (with two exceptionsI con-sidershortly) explicitly entrenchedexisting higher law against subsequentrevisionby the People. Thus, while the original Constitution gave higherlaw protection o slavery,at least it did not try to make it unconstitutionalfor Americansof later generationsto reconsider the question. Similarly,when Americans of the early twentieth century enacted Prohibition intoour higher law, they did not seek to make their Amendmentunamendable.In these two cases, of course,the People have indeed exercisedtheir rightto change their mind. And few among us would say that we were theworse for repeal. The general availability of repeal, however, is a verygreat embarrassment or foundationalist interpretationsof our Constitu-tion. For it would seem to authorizeamendmentsto our higher law thatmost modernfoundationalistsconsidermorally disasterous.

A hypothetical case may help make the point. Suppose that the reli-gious revivalprominent n the Islamic world turnsout to be the first waveof a Great Awakening that envelopsthe ChristianWest. A general revul-sion againstgodless materialism yields mass politicalmobilizationthat fi-nally results in a successful campaign for formal repeal of part of theFirst Amendment. With the dawn of the new millenium, AmendmentXXVII is proclaimedthroughout the land:Christianityis hereby established as the state religion of the Ameri-can people.

The enactment of the Christianity Amendmentmight well inaugurate adeep transformationof our higher law heritage-on the same order,though of a very different kind, as those achieved by the ReconstructionRepublicans and New Deal Democrats in earlier generations. Moreover,such an amendment offends my own commitment to freedom of con-science.Nonetheless,if I were then unlucky enough to be a Justice of theSupreme Court (serving as a hold-over from the last secular Administra-tion of the 1990's), I would have no doubt aboutmy constitutionalrespon-sibility. While I hope I would maintain my conviction that the establish-ment of Christianity had been a terrible wrong, it would now be myjudicial responsibility o uphold it as a fundamental part of the AmericanConstitution.If some die-hard secularist broughta lawsuit in 2001 seek-ing to convincethe Supreme Court to declare the Twenty-seventhAmend-ment unconstitutional,I would join my colleagues in summarilyrejecting


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470 The Yale Law Journal [Vol. 99: 453the petition-or resign my office and join in a campaignto convincetheAmerican People to change their mind.

The one thing I would not do is the thing suggested by foundational-ism: write a dissent assertingthat the First Amendmenthad not been val-idly amended.Moreover,I would be very much surprisedif many com-mentatorswho presentlywrap themselves up in foundationalistrhetoricwould do any differently.28I do not suggest that such a dissent would be preposterousunder anyand all constitutional arrangements. Consider, for example, the en-trenching principles deployedin the modern West German Constitution,which explicitly declares that a long list of fundamental human rightscannot constitutionallybe revised, regardlessof the extent to which a mo-bilized majorityof Germans supported repeal.2"Against this legal back-ground, I would hope the German constitutionalcourt would respondto aChristianityAmendmentin a very differentway. If they were faithful totheir foundationalist egal tradition,thejudges would issue a solemnopin-ion declaring the Christianity Amendmentunconstitutional,and challengethe dominant political majorityto use physical forceto disbandthe Courtif it were intent upon tearing the constitutional fabric apart.

But this only makes it clear how far dualist America is from founda-tionalist Germany. What meager constitutional experience America hashad with German-style entrenchmentshould be sobering to foundational-ist enthusiasts.When the Founders designedthe original higher lawmak-ing systemin 1787, they were perfectly aware of the entrenchmentdevice.But ratherthan servingthe cause of human freedom,the Founders usedentrenchment o disable the American People from enacting a constitu-tional amendmentbanning the African slave trade until the year 1808.30Since the Founding, no successfulconstitutional movementhas sought toentrench its achievementsagainst future constitutional-as opposed tonormal-politics. This historyof abuse and non-use of entrenchmentsug-gests, to me at least, that the foundationalist nterpretation s inconsistentwith the basic premises of the American higher lawmaking system. Thefact that We the People may constitutionally repeal many fundamentalrights3' eloquently expressesthe dualist idea that it is the People who arethe source of rights, and not the other way around.

28. For a constitutionalistwho may have the courage of his foundationalistconvictions,see Mur-phy, Slaughter-House, Civil Rights, and Limits on Constitutional Change, 32 AM. J. JURIS. 1(1987).29. GRUNDGESETZ [GG] art. 79(3) (W. Ger.), reprinted in 5 CONSTITUTIONS OF THE COUN-TRIES OF THE WORLD 68 (A. Blaustein & G. Flanz eds. 1986) and 2 KOMMENTAR ZUM GRUNDGE-SETZ FUR DIE BUNDESREPUBLIK DEUTSCHLAND 1479-86 (R. Wasserman ed. 1984).30. A secondentrenchingprovision stipulates that no state shall be deprived of equal representa-tion in the Senate without its express consent. This effort to entrenchfederalism caused all sorts oftroublein the aftermath of the Civil War. See Discovering the Constitution,supra note 1, at ch. 6.31. My purpose in the text has been to produce a hypothetical case which illuminates the differ-ence between dualist and foundationalistviews of constitutionalrights. The ChristianityAmendment


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1989] Constitutional Politics 471While there is much to be said for this dualist commitment,I do notmean to minimize its dangers. I myself would support a political move-

ment that sought to lead the People of the United Statesto enact a modernBill of Rights, and entrench it in the West German way against subse-quent revision by some future Americanmajority caught up in an awfulneo-Nazi paroxysm.-"Such a decisionwould not, of course,be enough to safeguardAmericanfreedoms during future crises. To the contrary, our constitutional historyis full of eloquent warnings against putting too much faith in one or an-otherrule limiting the way that futureAmericans might legitimately altertheir higher law. While constitutionalentrenchmentmight marginallyen-hance the protection of rights, this is not the only-or even the princi-pal-reason I advocate t here. What is truly important s that a collectiveeffort to enact a modern Bill of Rights couldonly occur after a long periodof debate and decision that would serve to reaffirm and to root moredeeply the role of fundamental rights in the ongoing life of the AmericanPeople.My aim here, however, is hardly to anticipate the outcome of such anexercise in constitutionalpolitics. It is to suggest that, unless and until itoccurs, dualism captures the spirit of American constitutional life betterthan any foundationalistenterprise.In contrastto some other modern con-stitutions,we Americans hold that our rights are ultimately to be definedby the People acting through the higher lawmaking system, not by somegroupof philosopher-judges ngaged in a deep inquiry into the nature ofhumanrights.We are democrats irst, thoughnot democratsof the monis-tic persuasion.servesthis purposewell, becauseit involves a right that most foundationalistswould considerfunda-mental but that almost all lawyers-and all dualists-would immediatelyrecognize as repealable.While this suffices to distinguishdualismfrom foundationalism, he hypotheticaldoes not allow us toconsiderwhether dualist theory allows any conceptualroom at all for entrenchment.A hypothetical est of this questioninvites one to imaginethat a fundamentalistmovementmanagedto ratify a secondamendmentalong with the one hypothesized in the text:Any Americanadvocating he repeal of the ChristianityAmendmentis hereby declaredguiltyof treason and will be subjected o capital punishmentupon conviction.This amendment, n contrastto the first, aims to make it impossiblefor the People to reconsider tscommitment o Christianity,and so amountsto the repeal of dualist democracy tself. Would it there-fore be constitutionallyappropriatefor judges to invalidate it? Or would it simply be best for alldecent people to quit the regime and struggle to overthrow it?Such questions are best left to the dark day they arise. For now, it is enough to beware easyanswers.In particular,I do not believethatjudges would bejustified in assertinga general authorityto protectthe fundamentalprinciplesof dualist democracyagainst repudiationby the People. Sup-pose, for example, that the next round of our constitutionalpolitics were dominatedby a mobilizedcoalitionof liberals who sought to entrench a modernizedversionof the Bill of Rights, guaranteeingaright to a minimum income along with other new rights unknown to our eighteenth-centuryFoun-ders. This act of entrenchment, no less than the hypothetical Christianity amendments,would beinconsistentwith the principles of dualist democracy,since it would try to make it impossiblefor thePeople to changetheir mind aboutcertainconstitutionalvalues.Yet would thejudges have the consti-tutionalauthorityto force the People to keep these possibilitiesopen?32. My own views concerning he contentof a modernBill of Rights are suggested in B. ACKER-MAN, SOCIAL JUSTICE IN THE LIBERAL. STATE 231-326 (1980).


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472 The Yale Law Journal [Vol. 99: 453D. Historicism

The clash between monists and foundationalistsdominates the presentdebateabout the AmericanConstitution.This conflictis not only theoreti-cally demanding but practically important. Courts in this country areobligedeveryday to mediate the tensionbetween democracyand rights asthey determinewhether one or another statute satisfies the Constitution.The sharpsplit betweenthe two schoolsmimics the split between plaintiffand defendant n the typical lawsuit-the plaintiff insisting that a statutehas violatedher fundamentalrights, while the defendant insists that thecourt defer to the democraticauthority of Congress. Little wonder, then,that thoughtful udges and citizens are drawn to reflections about democ-racy and rights, creating an audience for the work of the two competingschools.Dualism suggests that this contest between plaintiff and defendant inthe courtroomneed not be taken as a sign of unremittingconflict betweenthe democraticand rights-orientedaspectsof our tradition.Instead, bothnormal statutesand the judicial protection of our higher law legacy arepart of a largerpracticeof dualisticdemocracy.This abstractsynthesis,ofcourse,hardlysuffices to decide concretecases. But it points in a particu-lar direction-toward a reflectivestudy of the past to determine when thePeople have spoken with a higher lawmaking voice and what they havesaid on the relatively rare occasionsof successfulconstitutionalpolitics.

1. Lawyer'sHistoricism:The Paradoxes of American "Burkeanism"This historicizingtendency allows the dualist to make contactwith athird strandof constitutional hought. I call this tendency Burkean, since

it has yet to find its modernBurke-though Alexander Bickel became aneloquent spokesmanbefore he died prematurely.33While it is certainlypossibleto isolate Burkeanaspects of recent academicwork,34 his litera-ture only hints at its powerful influence on practicing awyers andjudges.These professionalshardly require the servicesof brilliant theorists tocultivatea Burkean sensibility. They are already deeply immersedin acommonlaw traditionthat demandsthe very skills and sensitivitiesthatself-consciousBurkeanscommend.What counts for the commonlawyer isnot some fancy theory but the patternsof concretedecision built up bycourtsand otherpracticaldecisionmakersoverdecades,generations,centu-ries. Slowly, often in a half-consciousand circuitous fashion, these deci-sions build upon one another to yield the constitutionalrights that modern

33. See A. BICKEL, THE MORALITY OF CONSEN-T 3-30 (1975).34. See, e.g., Fried, The Artificial Reason of the Law or: WhatLawyersKnow, 60 TEX. L. REV.35 (1981); Kronman,Alexander Bickel'sPhilosophy of Prudence, 94 YALE L.J. 1567 (1985); Wel-lington,CommonLaw Rules and ConstitutionalDouble Standards: SomeNotes on Adjudication, 83YALE L.J. 221 (1973).


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1989] ConstitutionalPolitics 473Americanstake for granted, just as they slowly generate precedents thatthe Presidentand Congressmay use to claim new grants of constitutionalauthority.The task of the Burkeanlawyer or judge is to master these precedents,gaining a sense of their hidden potentials for growth and decay. As al-ways, this basic conceptioncan be elaborated n reformist or conservativedirections. Reformist incrementalists ry to keep the precedentsabreastofthe "evolvingmoral sense of the country."More conservative ypes maybe moreopen to the incrementaldevelopmentof presidentialpower. Yet itis more important to focus upon the point that all these common-lawBurkeanshave in common-an emphasis on the ongoing cultivationof aconcretehistoricaltraditionsorelymissingfrom the talk of the "hightheo-rists,"be they partisans of monisticdemocracyor rights foundationalism.So far as these commonlawyers are concerned,there is more wisdom inthe gradual accretion of concrete decisions than in the abstractspecula-tions of our most brilliantacademics.The only valuable"theory" s foundin the opinions of judges respondingto the facts of particular cases. Eventhese theoriesshouldnot be taken too seriously;they will take on differentmeanings as they are tested over the generationsby differentjudges con-frontingdifferent cases. Given the pervasivenessof this common-lawsen-sibility amongst the bar and bench, there is no need for a modern Burketo tell Americanlawyersthat the Constitutionof the United States cannotbe understoodby those who have failed to immerse themselves in the his-torical practiceof concretedecision.

Such historicistsentimentscontain importantinsights-so long as theyare not confusedwith the whole truth about the American Constitution.-To put the Burkean sensibility in its place, I shall begin by consideringthe aspectof dualistconstitutionalismt entirely ignores.Only then will itbe possibleto isolate importantpoints of convergence.

The common awyers'blind-side can be summarized n two words: con-stitutional politics. Indeed, on those occasions that Burkeanismreachesself-consciousness-as in Bickel's later work3-"constitutional politics isaggressivelydisparaged.All that Burkeanssee in such enterprisesare thecharismatic,but unscrupulous,leaders; the loud, but hopelessly ambigu-ous, ideological pronunciamentos; he excited, but ignorant, masses. Atbest, such eruptions of collective irrationality will quickly disintegrateamongstcloudsof factionalrecrimination.Otherwise, a governmentseizedby Utopian fantasies can degenerate nto unspeakable yranny with bewil-

35. Bickel did not get the chance to work out this view. It is easy to find eloquent advocates nallied disciplines. See D. BRAYBROOKE & C. LINDBLOM, A STRATEGY OF DECISION (1963); F.HAYEK, LAW, LEGISLATION AND LIBERTY (1978); B. HUNTINGTON, AMERICAN POLITICS: THEPROMISE OF DISHARMONY (1981); M. OAKESHOTT, ON HUMAN CONDUCT (1975). For an outstand-ing recent example of this sensibility at work in the study of a particulardoctrine, see Blasi, ThePathological Perspectiveand the First Amendment,85 COLUM. L. REV. 449 (1985).


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474 The Yale Law Journal [Vol. 99: 453dering speed. Given this nightmare,could anyone of sound mind supporta regime in which the sober and sensible Burkean did not have the finalsay?It is preciselyhere where the dualist intervenesto disturbthe Burkean'sself-congratulatory tatementof the alternatives.While only a fool fails torecognizethe dangers which so impress the Burkean, the dualist cannotallow herself to forgeta very different possibility.In the dualist picture,apolitical leadershipchallenges the traditionalwisdom on behalf of princi-ples which, though inevitablyopen-ended,do have rationalcontent. Whilethese transformativenitiatives inspire mass involvement,passionatecom-mitment,great sacrifice,the result is not some unspeakabletyranny,but adeepeningdialogue between leaders and citizenrythat finally succeedsingeneratingbroadpopularconsentfor a sharpbreak with the receivedwis-dom of the past. Constitutionallawyers would be wrong to view thesesuccessful exercises in popular sovereignityas if they were nightmarisheruptions. To the contrary: Most Americans have no trouble identifyingsuch great popularstruggles as culminatingin the nation'sgreatestpoliti-cal achievements.Thus, the original Constitutioncodifiedthe Revolution-ary generation's defeat of monarchy on behalf of republican self-government;he Civil War Amendmentscodifiedthe struggleof an entiregenerationto repudiate slaveryon behalf of a new constitutionalidea ofequality;and so forth. Rather than wishing to forget such great achieve-ments,our Constitutionseeks to protectthem againsterosion duringmorenormaltimes, when the People are less involvedin affairs of state.This dualist conclusionchallenges the standardBurkean sensibility inat least fourways. First, it undermines he Burkeancommitment o incre-mentalconstitutionaldevelopment.While gradualadaptation s an impor-tant part of the story,36 he Constitution cannot be understoodwithoutrecognizingthat Americans have, time and again, successfullyrepudiatedlarge chunks of their past, and transformedtheir higher law to expressdeep changes in their political identities. Perhaps these changes do notseem radical to those who long for a total revolutionthat (vainly) seeks toobliterate every trace of the old regime. But, when judged by any otherstandard,they were hardly incremental. If a label will clarify matters,American history has been punctuated by successfulexercises in revolu-tionary reform,in which the protagonistsstruggledover basic questionsofprinciple with ramifyingimplicationsfor large areas of American life.Which leads to a second dualisticchallenge. The Burkean is suspiciousnot only of big breaks, but of the self-consciousappeals to abstractprinci-ples that accompanythem. He prides himself in avoiding loose talk ofFreedom, Equality, or Democracy. Even more modest theories dealingwith limited subjects like "free speech"or "equal protection"may seem

36. As my discussion of interpretivesynthesis in Part III will begin to suggest.


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1989] ConstitutionalPolitics 475impossibly vague to him. Yet, for the dualist, an encounterwith such ab-stract ideals is a crucial part of coming to terms with the American past.Whatever else may be said about the Founders, they were hardly contentwith the Burkean arts of muddling throughcrises. They were childrenofthe Enlightenment,eager to use the best political scienceof their time toprove to a doubtingworld that republicanself-governmentwas no utopiandream.37Otherwisethey would never have tried to write down a Consti-tution whose few thousand words contained a host of untried ideas andinstitutions. If abstractideals were important to the Founders and theirsuccessors n constitutionalpolitics,how can we pretendto understandourlegacy without confrontingthem?

Third, there is a particular abstractionthat gives the Burkean specialtrouble:rule by the People. The People rule best, the Burkean may saywith a broadwink, when they leave the businessof government o a well-trained elite immersed in the nation's concrete constitutional tradition.Slowly but surely, this elite will sense the drift of popular sentiment andtake the countless small steps needed to keep the tradition responsivetothe present'shalf-articulatesense of its special needs. For the Burkean,however, the public dialogue accompanying ongoing adaptation is bestkept to relativelysmall groups-judges talking to one another about therelationship of past decisions to present problems, statesmentelling oneanotherthat their constituents have not given them a mandateto accom-plish particulargoals but have selected them for their prudent capacity tomake sensible changes in public policy.

Once again, it is not necessaryfor the dualist to belittle the importanceof this Burkeanenterprise n political adaptation.She refuses,however, toallow this elite conversation o obscure the even greater importance of adifferent dialogue-the one through which mobilized masses of ordinarycitizens finally organize their political will with sufficient clarity to laydown the law to those who speak in their name on a daily basis in Wash-ington, D.C. While competing elites play a critical role in this higherlawmakingdialectic, we shall see that it characteristicallynvolves a con-flictual and ideologicalpoliticsthat Burkeans disdain.This is all the moreunfortunatebecausesuccessfulhigher lawmakingalso requires a kind ofstatesmanship to which the Burkean might otherwise make importantcontributions.

To sum up the dualist critique in a fourth point that presupposesthefirst three:The Burkean fails to recognizethat he can easily becomepartof the problem,rather than the key to its solution. An enduring problemof dualist democracy is to prevent government from departing from theprinciples of higher law validated by the People during their relatively37. See Kahn, Reason and Will in the Origins of American Constitutionalism,98 YALE L.J.449, 453-73 (1989).


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476 The Yale Law Journal [Vol. 99: 453rare successes in constitutional politics. From this vantage point, theBurkean'selitist refusal to take seriouslythe principleselaboratedby thePeople at past momentsof constitutionalpolitics may make him a potentengine in the erosion of these ideals over time. As they go about theirbusiness of particularisticadaptation,Burkeansmay take advantageof thegeneral public's weak involvement n normal politics to muddle their wayto "statesmanlike"solutions that undercut fundamental principles af-firmedby the People in prior exercisesof constitutionalpolitics. In thesecases, Burkean"prudence"degenerates, n dualist eyes, into obscurantistelitism that prides itself in ignoring the greatest constitutional achieve-ments of the Americanpeople.Burke himself understood his. While he is principallyremembered o-day for the contrast he drew between the abstract and excited politics ofthe French Revolution and the concreteand incrementaldevelopmentofthe Britishconstitution,Burkerecognizedthat the American revolutionar-ies eluded this easy dichotomy-and he tried, as best he could, to appreci-ate the distinctivecharacterof the Americans'experimentin revolutionaryreform.38Perhaps he would have been the first to protest the effort byAmerican "Burkeans" o understand their constitutionaltradition as if itwere a caricatureof Burke's story of British development.However wellBurkeanincrementalismmay fit the British experience,it falsifies the dis-tinctivecharacterof the American. If the American Burkeanis to put hishistoricizinggenius to good use, he must recognizethat American historyreveals the ongoing development of a politics of principle that results,when successful, in revolutionary reforms-whose meaning must bedeeply understood f the tradition is to continue to renew itself.

Once this essentialpoint is recognized,the dualist and the Burkean canbegin to discovercommonground. First, the Burkean'semphasis on thedemagogicpathologiesof excited mass politics cautions us to exercise thegreatest care in understandingour higher lawmaking system, both as itwas originally conceived and as it has developed in response to the con-crete challenges of American history. Not that this study can guaranteeagainst outburstsof collectiveirrationality n the future. There can be noguarantees.Demagogy is an endemic risk in any democraticsystem thatplaces real power in the hands of a mass public with limited time andenergy for the great issues of politics.Nonetheless, these risks can be con-trolled: first, by cultivating the arts of citizenship in a wide variety ofdaily contexts, from the union hall to the school board to the LittleLeague;and second, by developingconstitutionalstructureswhich channel

38. See E. BURKE, Speech on Moving His Resolutionsfor Conciliation with the Colonies (Mar.22, 1775), in SELECTED WRITINGS AND SPEECHES 147, 158-62 (P. Stanlis ed. 1968) (enumeratingdistinctiveaspects of Americanpeople).


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1989] ConstitutionalPolitics 477the energies of transformativemovements into a dialogue with the largerbody of the Americanpeople.

This secondtask definesone of my central concerns.In reexaminingthehigher lawmaking experienceof the Founding, Reconstruction,and NewDeal, I will be on the lookoutfor distinctivefeatures of the concretehis-torical processthat allowed Americans to transformmomentsof passion-ate sacrifice and excited mobilization into lasting legal achieve-ments-victories that might continue to inspire us today as we confrontthe challenges of the future. Indeed, the principal reason why my largerproject has turned out to be so time-consuming s that I have been com-pelled to reexamine in detailmany features of our historythat the presentprofessionalnarrativeconsigns to historical oblivion. This effort will re-mind the common awyer of his own searchinto historicalprecedents.Theconstitutionalprecedents hat will seem most important,however, are notthose handed down by courts, making interstitialchanges in one or an-other doctrine. Instead, the critical precedentshave been established dur-ing momentsof crisis, generatedby leaders like Madison, Lincoln, andRoosevelt-who, in a complex interaction with other institutionsand thepeople at large, managed finally to gain democraticauthority to makefundamentalchanges in our higher law. We should never allow a law-yerly fascinationwith judges to divert us from the fact that, during mo-ments of successfulconstitutional politics, the central foci of higher law-making energy have been Congress and the President,with the SupremeCourt playing a secondary,though sometimesimportant, role.

A first link with the Burkeansensibility,then, will be a concernwiththe concrete historical process through which generations of statesmenhave confrontedand resolved the distinctive dilemmas of constitutionalpolitics. This inquiry will lead us to glimpse a secondpoint of commonal-ity. The dualistjoins the Burkeanin insistingthat the Constitution s bestunderstoodas an historicallyrootedtraditionof theory and practice-anevolving language of politics through which Americans have learned totalk to one another in the course of their centuries-longstruggle over theirnational identity.

It is this traditionof discoursethat eluded the first two schoolswe haveconsidered.The monistic democratworships instead at the altar of thepresent;he supposesthat he knows all he needs to know about democraticrule if he simply consults the last statutoryword approved by Congress.The rights foundationalist eeks to escapethe limits of time altogether;hehopes to define some ahistorical state of nature or original position toserve as a constitutional platform from which to pass judgment on his-tory's passing show. In elaboratingthe constitutionalwill of the People,the dualist begins with neither the will of the present legislature nor theatemporalreasonof some utopian assembly. Her aim is the kind of situ-ated understandingone might reach after a good conversation.Only this


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478 The Yale Law Journal [Vol. 99: 453time the conversationis not between friends-or even enemies-whoshare the same moment and so can hear each other's tone of voice,observeeach other's gestures, continue tomorrow what is left unsaid today. Thechallenge, instead, is to locate ourselves in a conversation betweengenerations.

As today'sAmericanscome to politicalmaturity,we enter upon a polit-ical stage already set with a complex symbolic practice charged withmeaning by the thought and action of prior generations. There is, ofcourse, no necessityfor us to seek to understandthese symbols.We maytry, if we choose,to sweep them away in a grandgestureof disdain,or letthem die a lingering death by refusing to hear the voices of those whocame before us.

There is, however, wisdom to be gained fromthese voices, if we but tryto hear them. They can teach us both how prior generationshave man-aged, on occasion,to engage in great democraticachievementson a conti-nental scale and how they managed to sustain democraticpolitics duringthose periods when citizen involvement was less constitutionallycreativeand the People spoke with a more equivocal voice. In seeking to engagethese past voices in conversation, my aim is hardly to prostrate myselfbefore their superiorwisdom. A conversationwith the past can only be apart of the process through which the present gains its own voice andtherebymakes its own lasting contribution o the constitutionaltradition.Surely the American People have not yet pronouncedthe last word ontheir constitutional dentity? How best to continue the practice of dualistdemocracyinto the third American century? How best to revise ourhigher law legacy so that it will be equal to the demands of the future?I have my own answers-and so, I am sure, do you. Yet none of us can

expectour own ideals to gain popularconsent without passionate struggleand bitterdisagreement.Do we not owe it to ourselvesto understandhowAmericans have tested one another'sanswers in the past? For all its his-torical contingency and moral imperfection,this constitutional languagehas set the terms within which previous generationshave disagreedwithone another, and sometimes has allowed them to move beyond disagree-ment to a transformedunderstandingof their political commitments.Is itwrong to suppose that it remains a crucial resource for us in our ownstrugglesover national identity?

2. The Republican Revival: BeyondHartz and PocockIn consideringhistoricizing approaches to the Constitution,I have be-gun with Burke, not because he is the world'sgreatest philosopherof his-tory, but because Burkeanism expresses a powerful current of opinionamong the communityof lawyers and judges who are charged with thedaily task of interpreting the Constitution. Since these men and women


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1989] ConstitutionalPolitics 479are steeped in the common law tradition, it seemed important to warnthem against extending certain Burkean preconceptions o the task of con-stitutionalinterpretation,while inviting them to reinvigorateother morefundamentalhistoricist themes. Nonetheless, I hardly wish to make a fe-tish of today'sprofessional law-talk, especially since I mean to challengemany of the categories it uses to construct the prevailing constitutionalnarrative. Just as American law has, in the past, shown a remarkablecapacity to assimilate a host of popular and academiccritiques, there isevery reason to hope for similar revisionin the future.

Indeed, if a recent wave of legal scholarshipprovesa reliable guide, thisprocess of narrativereconstructionhas already begun. Over the past fewyears, the law journals have been full of effortsto join in a larger processof historicalreinterpretation hat has been a centralpreoccupationof thelast generation of American political scientistsand historians.The objectof this generationalcritique, unsurprisingly enough, has been its par-ents-historians like Richard Hofstadter,39political scientists like RobertDahl,40and sociologists ike Daniel Bell,41whose work dominatedthe ac-ademic horizon of the 1960's. This work, in the eyes of many, had en-dowed modern American liberalism with a social solidity and pervasive-ness it did not in fact possess-and the recent critique rippling throughthe social and historical sciences attempts to set the record straight.

The critical enterprise most relevant here is the effort to revitalize therepublican aspect of the American political tradition. The pathbreakingwork of BernardBailyn42and Gordon Wood43not only set an agenda formany historians,but increasingly has provided legal scholars with a re-source for normative reflection-with Frank Michelman,44 SuzannaSherry,45Cass Sunstein,4' and Mark Tushnet47opening a debate on thecontemporaryconstitutional implications of this "republican revival"among historians.As the diversity of these initial legal explorations sug-

39. See R. HOFSTADTER, THE PROGRESSIVE HISTORIANS (1969); R. HOFSTADTER, THE PARA-NOID STYLE IN AMERICAN POLITICS (1965).40. See R. DAHL, A PREFACE TO DEMOCRATIC THEORY (1956); R. DAHL, WHO GOVERNS?(1961).41. See D. BELL, THE END OF IDEOLOGY (rev. ed. 1962).42. See B. BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1967).43. See G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787 (1969). The endur-ing impact of this work is suggestedby the decision of a leading historicaljournal to celebrate theBicentennialof the United States by sponsoringa symposium on the book. Forum, The Creationofthe American Republic, 1776-1787: A Symposiumof Views and Reviews, 44 WM. & MARY Q.549-640 (1987).44. See Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); Michelman, The SupremeCourt, 1985 Term-Foreword: Traces of Self-Government, 100 HARV.L. REV. 4 (1986).45. See Sherry,Civic Virtue and the Feminine Voice in ConstitutionalAdjudication, 72 VA. L.REV. 543 (1986).46. See Sunstein,Beyond the Republican Revival, 97 YALE L.J. 1539 (1988); Sunstein, InterestGroups in AmericanPublic Law, 38 STAN. L. REV. 29 (1985).47. See M. TUSHNET, RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONALLAW (1988).


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480 The Yale Law Journal [Vol. 99: 453gests, the "republicanrevival" s no more a monopolyof a single politicalviewpoint than any of the other currentsof constitutional houghtwe havebeen exploring.48This diversityshould not blind us to the commoninvita-tion implicit in all these works: In rethinking the reigning professionalnarrative,would it not be foolish for lawyers to blind themselves to de-bates occurring elsewhere among thoughtful historians?I will recordmy own debt by engaging two books that repay severalrereadings: Louis Hartz' Liberal Tradition in America49 and JohnPocock's The Machiavellian Moment."0These works are rightly seen asthe most philosophicallyself-aware statementsof the older "liberal"thesisand its more recent "republican"antithesis.Rather than enlisting on oneside or the other of this debate, I propose to use the insightsof both in alarger historicalsynthesis.

a. HartzI share with Louis Hartz an abiding skepticismabout the power ofEuropean models to enlighten American politics. The particularmodelthat concernedHartz was the familiar Marxist view condemningall mod-ern societies to a compulsorythree-stepmarch to Utopia: first Feudalism,then Capitalism, then (but only then) Socialism. Whatever the merit ofthis model for Europe, Hartz was clear that it did not apply to Americafor one basic reason: Americansnever experiencedanything like Euro-pean Feudalism. Because the first term of the three-stagesequence waslacking, America also lacked the critical social ingredients necessary tospark the later movement from Capitalism to Socialism.America was acase of arresteddevelopment,permanentlyfrozen at Stage Two. It was aland firmly in the grip of a "Lockeanconsensus" that trivializedpolitics

and glorified the natural rights of isolated individualsto life, liberty, andthe pursuitof property (or is it happiness?). Since Americans never wereobliged to use state power to liberate themselves from Feudalism, theywere "bornequal,"5' and could afford to look upon the stateas an unmit-igatedthreatto naturalliberty. The government hat governs best governsleast. Let the Europeanssay otherwise.While there certainly is some truth in this account,it also serves as acautionarytale for those, like myself, who see something distinctive n theAmericanpoliticalexperience. No "exceptionalist" heorycan be any bet-ter than the theory to which it takes exception.While Hartz was obsessedwith the inadequaciesof Euro-centeredMarxism, his critiqueacceptedfarmore of this theory than he appreciated.This is, at least, the way I diag-

48. Curiously,republicanismhas not yet been mined by modernconstitutionalconservatives,de-spite their putativeconcernwith the "intention of the Framers."49. L. HARTZ, THE LIBERAi TRADITION IN AMERICA (1955).50. J. POCOCK, THE MACHIAVELLIAN MOMENT (1975).51. See L. HARTZ, supra note 49, at 5, 66.


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1989] ConstitutionalPolitics 481nose the non sequitur at the heart of Hartz' theory. I agree with Hartzthat the American revolutionaries,unlike their French contemporaries,were not in a life and death strugglewith Feudalism(whateverthat maymean when applied to the eighteenth, rather than the thirteenth, cen-tury).52But it hardly follows that the Americansfound nothingimportantto struggle about in politics. It is easy to see how an old-fashioned53Marxist might reachthis erroneousconclusion. By hypothesis,he believesthat the only "reallyimportant"use of state power is to serve as the revo-lutionarymechanismfor moving from Feudalism to Capitalismto Social-ism. Consequently, he fact that Americans did not "need" a revolution topush them to the Capitalist stage means that the American Revolutioncould not have been about anything"really important."If, however,thereis more to political life than a struggle over the timing of a compulsivethree-stage sequence, the mere fact"4that Americans had escaped OldWorld Fedudalismhardly implies that they could afford to relax and em-brace a comfortableLockeanism hat deniedany creative role for the statein social life. By embracing this non sequitur, Hartz remained in thethrall of the Marxist theory he sought to reject.To put my criticism more affirmatively,Hartz' mistake has its sourcein the meaning he chose to give the Tocquevilliandictum that Americanswere "bornequal." I am happy to adopt this slogan-as long as it merelyemphasizesthe rich cultural, material,and geopolitical resources hat ena-bled Americansto build a regimewhich, over time, has protectedthe lib-erties of an increasing proportion of its citizenry. If, however, Hartzmeant that this "equality" could be sustained without ongoing politicalstruggle over its meaning and its scope, or that Americans believed thatthey could "do without" a serious politics requiringgreat acts of creativ-ity, he was simply wrong. Rather than supposing that Americans were"born equal," the Founding Federalists believed that the New Worldwould soon becomeBalkanized into a host of petty militarytyrannies un-less they could mobilize their fellow citizens to join in unprecedentedactsof constitutionalconstruction-an ambition that their opponentswarnedwould lead to resurgentmonarchy.Rather than supposing that Americanswere "bornequal," ReconstructionRepublicanswere painfully aware ofthe disgraceof slavery,and successfully led the American People to com-mit the national government o serve as the guarantor of freedomfor allAmerican citizens-despite the passionate warning of conservativesthatsuch a use of national power would lead to military despotism. Rather

52. For a useful statement of the critique by contemporaryhistorians of the familiar Marxistaccountof the French Revolution,see J.F. BOSHER, THE FRENCH REVOLUTION (1988).53. "Old-fashioned"because,since Lenin, lots of Marxists have been trying to leap from feudal-ism to socialism,and lots more have been trying to liberatethemselvesfrom the economicdeterminismthat Engels imposedon Marxist theory.54. If it is a fact. Afterall, therewere feudal,as well as capitalist,aspects of the Southern planta-tion system. But it is not necessary o quibble with Hartz' facts to make the points that really matter.


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482 The Yale Law Journal [Vol. 99: 453than supposing that Americanswere "born equal," New Deal Democratswere convincedthat modern economicconditionshad made the so-called"naturalrights"of propertyand contract he tools of mass oppression,andsuccessfully ed the American People to empowerthe nationalgovernmentto manage the economy for the general welfare-despite the passionatewarning of conservatives hat such a use of national power would leaddown the path travelled by Hitler and Stalin. It is only as a result ofthese, and many other, political st

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