The Constitution Today
The Constitution is in trouble. The President has lost much of
his power to "take care that the laws be faithfully executed."
Individual Congressmen do that through their committees and
subcommittees that control executive branch agencies. Instead of
one chief executive every four years, responsible to the nation, we
have scores of anonymous Congressmen who operate invisibly behind
Nor is Congress making laws in the sense of debating and voting
on the broad rules that we will live by as a nation. Instead,
Congress is increasingly preoccupied with administration.
Congressmen spend most of their time on what is politely called
"constituent services," securing grants and tax breaks for their
donors and constituents, helping this or that company get
regulatory relief, and intervening in executive branch agencies for
this purpose. As for changing the system that allows groups who buy
"access" with campaign contributions to receive these privileges,
Congress never even discusses it.
Lawmaking by Judges
The Supreme Court, not Congress, now often makes the
controversial rules by which we live: our laws. The
Federalist explained the difference between lawmaking and
judging in this way: "What are many of the most important acts of
legislation but so many judicial determinations, not indeed
concerning the rights of single persons, but concerning the rights
of large bodies of citizens?" In other words, the legislature, not
the judiciary, is supposed to determine the rights of large bodies
of citizens; the judiciary is supposed to determine the rights of
single persons in particular cases at law. By this standard,
today's judges are clearly in the business of lawmaking.
Free government under the Constitution requires public
accountability and the separation of powers. But when the public
cannot know what deals its Congressmen make in private, it cannot
hold them accountable. When Supreme Court Justices with lifetime
appointments issue their edicts, the public cannot hold them
accountable. When the President's officials cannot exercise their
constitutional duties without the threat of prosecution or
punishment instigated by Congress, the public cannot hold the
President properly accountable. Consequently, when the
constitutional powers of the President are exercised by
Congressmen, when the powers of Congress are exercised by the
Court, liberty is diminished.1
The Constitution is also in trouble in another way. The
policies and rules that we are compelled to live by are often
unconstitutional in spirit, sometimes in letter. Employers and
government itself are now routinely required by courts and Congress
to give special privileges to blacks and women on the grounds of
race or sex, while the Constitution, and justice itself, call for
equal treatment. The Supreme Court recently admitted for the first
time that affirmative action "trammels the rights" of many citizens
and then proceeded to call it constitutional!2
The strangest thing about these developments is how little
opposition they have aroused. `Me presidential candidates in the
1988 campaign seemed more or less content with the current system,
each man, in his way, being a defender of the status quo. One
proposed a further expansion of the welfare state. The other
emphasized how well governed we already are. Neither expected to
have much difficulty governing. Yet it was not hard to see that
either man, once elected, would be in for a fight with Congress if
he should dare to assert the constitutional powers of his
Even more striking are the congressional races. The press, which
is bored or lazy, says next to nothing about them. The people
reelected a record number of incumbents, who will therefore
continue to behave exactly as they have been behaving.
A sign of the current state of things was the bicentennial
celebration of the Constitution in 1987. On September 17, the big
day, everyone said nice things about the Constitution, about how
much they revered it and loved it. Television showed retired Chief
Justice Burger taking turns ringing the Liberty Bell with a young
child. It was a pretty scene, although the frail old man and the
little girl could only bring forth a somewhat tinny sound.
When the ceremony was over, the TV switched back to the Senate,
which was in the midst of its hearings on Judge Bork, who had been
nominated to the Supreme Court by President Reagan. The discussion
was acrimonious. One Senator after another indignantly demanded to
know of Judge Bork if he really intended to carry out the original
intent of the Constitution, for if he did, they would be unable to
vote to confirm him.
No one called attention to the irony of this implicit rejection
of the Constitution we were supposedly celebrating. Senate
Republicans defended Judge Bork not by defending the Constitution
but by counting up the number of cases in which he had supported
women, blacks, and labor. Bork defended himself by promising not to
follow the Constitution too rigidly, since so many expectations and
institutions had grown up around decisions that may have been made
in opposition to that document. In short, those who favored the
Constitution were unable to make a principled case that the
Constitution is just.
Bork's theory of constitutional interpretation was often called
"original intent," meaning that he would follow what the words of
the Constitution and its amendments were understood to mean at the
time they were written and ratified. This approach, which has been
the basis of constitutional interpretation through most of our
history, was broadly denounced by liberals. They argued that such a
cramped view would hardly protect anyone's rights very well today.
When Senator Ted Kennedy asserted that Bork wanted to bring back
segregated restaurants and force women to stay home, he meant that
the original meaning of the Constitution and of its amendments was
racist and sexist. What really worried him, of course, was that
"original intent" would not support affirmative action, the right
to abortion, the right to sodomy, the outlawing of the death
penalty, further expansion of the welfare state, further erosion of
the powers of the President, and other current fashions in
constitutional "interpretation." These fashions happen to be the
heart of today's liberal agenda.
What the liberals really meant was that the Constitution as
written and amended is defective. This is because the conception of
justice embodied in the document's actual language is allegedly
inadequate for our time.3 In plain
English, the Constitution is no good, and the judge's job is to set
it right by pretending to find in it the justice that our times
Rejecting the Constitution
The Bork hearings, however, did not bring this out, because
Bork's defenders felt themselves to be morally weak. They felt
unable to attack Bork's opponents with the vigor that Bork's
opponents attacked Bork.,nat is because his opponents kept using
the language of fights and justice and equality,
while his supporters were uncomfortable with that language
but could not think of anything to defeat it. The anti-Bork forces
got away with their implicit rejection of the Constitution because
of the success of their appeal to a higher moral standard. The
pro-Bork people were unwilling to engage the argument on that
level. Indeed, Judge Bork himself maintained that the Constitution
has no moral foundation in any "general theory" of "the rights of
man.4 His fidelity to the text of the
Constitution therefore was viewed as crassly indifferent to the
cause of justice. The argument that we should follow the
Constitution because that is what the people ratified, as Bork kept
saying, did not help because he then seemed to be saying that
whatever the people will is just. But might does not make
Thus we had the spectacle of liberals pretending to respect but
in fact eager to abandon the Constitution for the sake of justice,
and conservatives loyal to the Constitution without being able to
give a principled reason for being so. This, I think, says
eloquently enough why the Constitution is in trouble today.
The Weakness of Conservative Pragmatism
It seems to me that the current state of the debate points in
one of two directions. We could follow the logic of the liberals
and reject the Constitution cleanly and without apology. It served
well enough in its time; but now it is time to junk it and get on
with something else. That "something else," of course, may turn out
to be less attractive, once it is stripped of its pretended
continuity with the past. It may well mean the legitimizing of
centralized government by unelected "experts" controlling every
detail of our lives from birth to death.
Playing into Liberals' Hands
On the other hand, we could follow the logic of some
conservatives and give up the quest for justice altogether, on the
ground that any appeal to justice and equality is bound to play
into the hands of liberal activists like Brennan. In this view we
should oppose liberals like Brennan by arguing pragmatically,
absolutely refusing to meet them on the ground of abstract
The conservative inclination may sound reasonable, but, as a wag
once asked, does pragmatism work? The majority of the Supreme Court
was appointed by Republican Presidents, but nothing seems to
change. In recent decisions the Court has affirmed defacto a
constitutional requirement for hiring women and blacks who are less
qualified than other citizens; has taken the side of the Democratic
Congress in a separation of powers case; and has allowed a District
Court in Yonkers to threaten elected officials with enormous fines
to compel them to build public housing projects, with their
attendant crime and violence, in middle-class neighborhoods.
There is a substantial Republican minority in Congress, but they
are not always reliable when it comes to supporting presidential
vetoes and strong executive actions. Many of them were silent or
ready to go along when impeachment talk was in the air in the
summer of 1987, before Oliver North's testimony shattered that
The Reagan Administration had numerous opportunities to fight
affirmative action, a policy that among other things requires
racial discrimination. But it did not have the heart to do so.
All this happens, I am suggesting, because conservatives are not
sure the liberals are wrong on principle. In a contest between
human dignity (liberals) and pragmatic constitutional text
(conservatives), one has to be inhuman not to be attracted to the
liberal side. And that is just what happens.
Let me exaggerate for the sake of clarity. The liberals give us
ideals without a constitutional text, and the conservatives give us
a constitutional text without ideals. Neither approach will do. The
right view, I will argue, is that the text of the Constitution is
an embodiment of our deepest ideals of human dignity, and that is
why the original intention of the Constitution and its amendments
deserves the respect and deference of the Supreme Court, Congress,
and the American people.
Returning to the Founders
If pragmatism doesn't work, and considering the tarnished
promise of socialism, we have plenty of incentive to look again at
the Founders' Constitution. There is good reason to reopen the case
that the Constitution, with its amendments, itself embodies the
principles of justice. In other words, maybe the Constitution was
originally intended to secure the natural rights of mankind.
Now this, in my opinion, is the truth of the matter. Although
this natural-rights view of the Constitution is out of favor in
many conservative as well as liberal circles, it is the longest
enduring constitutional understanding in our tradition. For most of
our history it was the mainstream view, the conservative view, of
the Constitution. It was shared by such prominent politicians as
Washington, Jeffersorn, Madison, John Quincy Adams, Uncoln, and by
most post-Civil War Presidents through Coolidge. The Progressive
movement, aided by the Great Depression, swept it away, and recent
conservatives, with a few notable exceptions, have been reluctant
to revive it.
Can Original Intent Be Known?
There is a frequently made but shallow objection to discovering
original intent. In the speech referred to earlier, Justice Brennan
called it "arrogance cloaked as humility." It is asserted that
original intent is unknowable because (1) the Founders disagreed
among themselves and (2) their private thoughts, their
"intentions," are not in the public record.
Of course the Founders had disagreements. But those
disagreements were not over fundamental principles, but rather over
how to implement those principles. An examination of the debates
surrounding the adoption of the Constitution in 1787 shows that the
issue was how best to save the Revolutionary principles of 1776,
principles that, in spite of accusations on both sides, most men
faithfully adhered to. As to their private intentions, Thomas
Sowell says it well:
[The critics of original intent] seem determined to have it mean
something that its advocates (from Holmes to Bork) have never
meant: the private, subjective beliefs or desires of those who
drafted legislation and the Constitution. What those who advocate
"judicial restraint" or "original intent" have been seeking, at
least as far back as Blackstone, is the cognitive meaning of
instructions found in the law.5
Those instructions, to be sure, are guided by an understanding
of right and wrong in the minds of those who draft them, and where
that understanding is clearly and authoritatively articulated, as
it was by the Founders, then it should be consulted.
In principle, it is not hard to find out what the Founders
thought they were doing - what the "original intent" of the
Constitution was. All you have to do is look at what they said and
wrote. Most authoritative are the leading public documents,
including constitutions, laws, public debates, and writings
(including some sermons) published by the authority of governmental
bodies during the founding period. Public statements and writings
by the most respected politicians deserve the greatest attention,
for these are the men their colleagues and the people turned to as
their rulers and spokesmen. Finally, it is worth consulting private
writings that were favorably received by the public, such as Thomas
Paine's Common Sense.
But in practice it is not so easy. For one thing, this material
is widely scattered in collections of documents and of writings by
the numerous leading statesmen of the period. It takes time to read
it. And each of the several edited short versions of the Founders'
work omits important material. So the tendency of the educated
public is to fall back on scholarly books on the founding - or even
journalistic summaries of those books - to guide them through the
But here we encounter a greater problem. Scholarship, we are
told, is objective and scientific on the model of sciences like
chemistry. Yet the scholarship on the founding turns out to be
beset with internal disagreements. Making sense of the different
lines of interpretation is a job comparable to interpreting the
Constitution itself But the main lines of approach are clear. The
touchstone is the name of John Locke and the natural rights to
life, liberty, and property associated with his name.
Liberal and Conservative Scholarship and the Founding
It has become fashionable in recent years to denigrate the
influence of Locke on the American founding. Liberals are inclined
to theview that the Founders (at least those of 1776) cared more
about the public good than about the individual rights of life,
liberty, and property celebrated by Locke - as if the public good
was not in large measure defined by the securing of those rights.
Liberal scholarship generally argues a position first popularized
by historian Charles Beard: the Revolution of 1776, fought on
democratic principles, was betrayed by a conservative reaction in
1787, which produced the U. S. Constitution.
But today's liberals are more subtle than Beard. They no longer
claim that the Constitution's Framers were motivated by crude
economic self-interest. Instead, they criticize the 1787 Framers'
concern for property rights, while they praise the "classical
republicanism" of 1776, which, in their view, rightly subordinated
property rights to the needs of society. "Ideally, republicanism
obliterated the individual," asserts historian Gordon Wood in a
widely celebrated book on the political thought of the founding (he
might have been describing Marxism). Wood and other scholars would
like to discover in our founding a political theory that justifies
maximum state control of property rights:
The extensive mercantilist regulation of the economy, the
numerous attempts in the early years of the war to suppress prices,
control wages, and prevent monopolies... was in no way inconsistent
with the spirit of '76, but in fact was ideally expressive of
what republicanism meant [my emphasis).6
This is a case of reading back into the founding the principles
of the modern regulatory state or even socialism.7
Conservative scholarship, on the other hand, tends to present
the founding in one of two ways. Traditionalist conservatives (such
as Russell Kirk and Forrest McDonald) emphasize the purely British
and colonial heritage of the Revolution. They would like to believe
that this heritage developed "organically," with little or no
benefit from philosophical theories. They have correctly shown that
the Founders held that liberty presupposes morality and religion
and the rejection of self-indulgence, cowardice, and atheism. But
because these scholars fear the liberal politics of egalitarianism,
they have been reluctant to embrace the Founders' idealistic
dedication to natural rights.
Thus conservative and liberal scholars alike frequently deny
that the natural rights of man were the principled basis of the
American Revolution and the tradition of constitutionalism that it
spawned. They both fear that the Lockean concern for individual
liberty stands in the way of the proper concerns of the community.
Consequently, they are inclined to look for and emphasize
non-Lockean strains in the founding. They imply, although they
rarely acknowledge it, that individual liberty - each person's
inalienable right to life, liberty, and the pursuit of happiness -
is opposed to the common good. They also imply that the American
belief in individual liberty, wherever it may have come from, is at
the root of many of our current political problems.
The other conservative approach, built on the work of Leo
Strauss, correctly insists on the natural rights basis of the
Revolution, but then goes on to denounce that basis - or only
halfheartedly endorse it - because (in this view) it legitimates
self-interest, ultimately self-indulgence, and fails to set proper
limits to liberty. (Adherents of this view include Walter Bems,
George Will, Allan Bloom, Thomas Pangle. Strauss himself never
endorsed it.) Thus these conservatives agree in this respect with
the liberals who disparage the Constitution for its preoccupation
with property rights. At best they can muster up only "two cheers
for capitalism" (Irving Kristol's phrase).
If the Straussians are right about the Founders' principles, we
certainly have an incentive to look for non-Lockean elements in the
founding. For if America is as "ill founded"8 as George Will and other conservatives and
liberals think it is, we may well be compelled to join them in
abandoning the principles of the founding and replacing them with
some newer and hopefully sounder principles (although 20th century
experience with socialism and other despotic alternatives to free
government is not encouraging in this regard).
Let us be clear: the current scholarly debate is about the same
thing as the current political debate, namely, whether the U.S.
Constitution is corrupt from the very start because of its faulty
Natural Rights and the Revolution
It is not hard to show that the political principles of leading
Americans during the revolutionary period were those of John Locke.
He was the author most often cited in the political writings of
these years.9 Locke's views, often even
his name, were featured in documents of state legislatures, town
meetings, and Congress. Preachers frequently quoted Locke in their
sermons on political rights and duties. There were many other books
and writers to whom the Founders looked for practical wisdom in
politics, above all the Bible. But when it came to first
principles, Locke was by far the leading authority.10 Here in brief are Locke's principles, as
the Americans understood them:
- All human beings are born equal in the natural state of things,
in the sense that no one has a natural right to govern another.
Equal rights to life, liberty, and property follow.
- In the pre-civil state, these rights are often violated because
of the unchecked passions of bad men. Therefore the most urgent
purpose of government is to secure those rights.
- Since no one has the right to rule another by nature without
that other's consent, government, which limits one's liberty and
property, must be based on the consent of the governed. (The
revolutionary slogan, "No taxation without representation," sums up
this part of the theory.) Consent in founding means government is
established by a contract among the people. Consent in governing
means elected representatives. The alternative to consent is
There is a right to revolution if
government violates either of these criteria (protection of
individual rights and consent).
To secure these rights, government must
rule by law: public rules publicly deliberated on and applied
Liberty is not unlimited, even in the
state of nature. This limit is defined by the law of nature,
sometimes called the moral law. The civil law must enforce the law
of nature in the state of society.
Locke's account of politics combines idealism and realism. It is
idealistic because it provides for government of, by, and for the
people. It is realistic because it recognizes that human beings are
often driven by passions and that government is needed to put
limits on the passions.
This theory, of course, was not peculiar to Locke. Other writers
respected by Americans had laid out the same argument. Some were
influenced by Locke, such as Blackstone, Burlamaqui, and radical
English Whigs such as Trenchard and Gordon. Others preceded Locke,
such as Pufendorf and Sidney. But Locke had given the argument its
clearest and, for Americans, its most persuasive presentation.
One fashion in today's scholarship, already alluded to, is to
claim that the Founders rejected Locke in the name of "classical
republicanism."11 In this view, the
protection of individual rights (especially property rights)
conflicts with the promotion of public virtue, which is said to
have been the main theme of the 1776 period.
Distinguishing Liberty from License
It is certainly true that the Founders believed that free
government and human decency required public virtue. When they
spoke of the right to liberty, they did not mean anything like
today's "right to privacy." For they always distinguished liberty
from license. They thought laws encouraging virtue and suppressing
vice were not only compatible with liberty but essential for it.
These laws ranged from restrictions on pornography and sodomy to
public support of education in morality and religion.
Locke's own ultimate view of man's purpose in life may well have
been at odds with the Founders' common-sense view of the
matter.12 But whatever Locke may have
held, the Founders did not think their concern for public support
of morality conflicted in any way with their dedication to the
equal rights of mankind, including the right to own and acquire
private property. On the contrary, they despised a liberty that
looked with indifference upon a life of selfishness, cowardice,
self-indulgence, and atheism. For them, there is a dignity in human
nature, but it lies in man's capacity to live justly and wisely.
Man can live up to the dignity of his nature or fall into
degradation. Justice Brennan, on the other hand, thinks human
dignity is something that every wanton killer, child molester, and
drug dealer possesses by the mere fact of being alive.13
The Founders' distinction between liberty and license, and its
embodiment in our institutions, has been ill understood by
conservatives for some time. They are half persuaded by those who
argue that protection of property rights promotes a selfish and
materialistic society. President Eisenhower once recounted a
conversation he had with Soviet Marshall Georgi Zhukov in the
1950s. Zhukov told Ike that "you [Americans] appeal to" "everything
that is selfish in man." Eisenhower's response: "I was very hard
put to it when he insisted that their system appealed to the
idealistic, and we completely to the materialistic, and I had a
very tough time trying to defend our position."14
Natural Rights and the Constitution: The Founder's
In the enthusiasm of 1776, the Founders did not worry much
about the structure of government. There was a general trust that
democratic government itself would solve many problems, which were
thought to have stemmed from hereditary aristocracy and monarchy.
They were tempted to believe that government by consent would
always protect individual rights (see Locke's principles above).
But this was not to be.
By 1787 the problem was to make democracy work. Like today's
ex-liberals who are now neoconservatives, the Founders were mugged
by reality. The structure of the national government was so weak
that it was ignored by everyone. State governments routinely
violated individual rights to liberty and property. Americans had
to face the fact that human nature and imperfect institutions
provided obstacles to just and competent government, even when
government is democratic. This was always acknowledged in
principle. But more attention was now paid in practice to the
strength of human passions and the characteristic weaknesses of
democracy. Yet their real concern with the excesses of democracy
did not cause them to renounce their dedication to the proposition
that all men are created equal. But that dedication became more
A major error in the first attempts to establish democracy, it
was now seen, was in the structure of government. There was no
adequate federal authority. There was no proper separation of
powers at the national or state level. The legislatures in every
state were acting despotically.
No previous political writer had much to say about these
practical problems of implementing free government. For this they
had to rely on their own experience and judgment. On separation of
powers they had Locke and Montesquieu, but even here they were
mostly on their own, for these men had not written about wholly
popular governments. Nor was there any adequate treatment of
government under a written constitution.
First, they gave the national government adequate powers
to take care of affairs that were truly national in scope, such as
foreign policy and maintaining a free market for commerce.
State governments and local communities retained their authority
over matters of detail and everyday life, as was appropriate.
Second, the executive and judiciary were made more
independent of the legislature. The President was elected
indirectly by the people, not by Congress. Judicial functions were
not to be dealt with by the legislature. The Constitution was not
amendable by the legislature.
Finally, the executive was given additional
constitutional powers to defend his office, resist the
encroachments of the legislature, and promote a more competent
The result was a government limited not only by the "parchment
barriers" of a written Constitution but by the self-interest of
presidents and judges determined to protect the constitutional
rights of their offices against legislative violations.
To this extent the Founders saw the importance of using
self-interest on behalf of the common good. But they did not make
the mistake - as Kant and later philosophers did - of believing an
entirely selfish citizen body and ruling elite would be able to
govern themselves democratically. Education was crucial -
especially the discipline of strong laws.
In this way the Founders tried to establish a government based
on the sovereignty of the people that would do a better job of
protecting the rights of the people against the encroachments of
private factions and of government itself.
Let us restate the question of today's liberals: why should we
respect the original intention of the Constitution? If the
Constitution is unjust, let's ignore it as best we can. But the
Constitution is not unjust. Its original intention was good. Martin
Luther King called the Declaration of Independence and the
Constitution "that magnificent promissory note" to blacks and
Americans of all ethnic origins, and our history has proved him
Of course, at the time of the founding, slavery existed and
prejudice existed in private life against people of different
ethnic groups. That was a fact of life; but that fact of life stood
in conflict with the basic commitment and basic principles that the
nation had adopted, and by which the nation was to live with an
increasing degree of fidelity for the next two hundred years.
Fruits of the Constitution
TheConstitution is often reproached for its compromises with
slavery. In a 1987 speech Supreme Court Justice Thurgood Marshall
said he for one didn't see much to celebrate in the Bicentennial of
the Constitution because of the stain of slavery upon it. But has
Justice Marshall given thought to why blacks were ever liberated in
this country? Emancipation did not just drop down out of the sky
one day. Lincoln and the Republican party of the 1850s were able to
mobilize a national majority against slavery expansion only because
of the commitment our Founders had made to the proposition that all
men are created equal. And hundreds of thousand of whites died in
the Civil War that from 1862 on was a war for emancipation. That
war was fought for the sake of, and under the aegis of, the very
Constitution of 1787 against which Justice Marshall complains so
bitterly. The fruits of that victory were constitutionalized in the
13th, 14th, and 15th amendments. Thus the document was finally
brought into conformity with its original principles.
The Founders understood the Constitution's tolerance of slavery
as a compromise that had to be made because of existing prejudices
and interests in society - a compromise that they believed and
foresaw would be corrected in the course of American history after
the Union was formed. Their belief turned out to be true. That is
the meaning of the Civil War for our nation.
Taking Pride in America
Now when we look at what has happened in the 200 years since
the founding, we see that our loyalty to the original intention of
the Constitution - our dedication to the idea of equality under the
rule of law - has succeeded in creating a country in which there
really is equality of opportunity for all American citizens. The
promissory note of the Declaration and the Constitution has been
Americans need to recognize once again that they can justly take
pride in their country and its traditions, and that they can oppose
the liberal rejection of the Constitution in full consciousness
that theirs is the cause of justice. Americans with conservative
inclinations long have been habituated to think of themselves as a
sober drag on the wheels of inevitable liberal progress. They need
to be reminded that the conservative position was and remains the
revolutionary position, the position on whose basis justice has
best been achieved in the modern world, and that liberalism in its
current guise no longer stands for freedom.
For what else is the meaning of the Supreme Court's statement
that it is constitutional to "trammel" the rights of whites and
males, as long as they are not "unnecessarily trammeled"? The
Supreme Court, of course, will decide how far it is "necessary" to
trammel their rights, which means their "rights," and everyone's
"rights" (including minority "rights") are not rights at all, but
only favors that the Court may withdraw any time it deems it
"necessary." This is neither government by consent of the governed,
nor government securing the equal individual rights of all
citizens. It is despotism.
1 A fuller account of our
institutional crisis is given in my chapter and others in a recent
Heritage Foundation/Claremont Institute publication, 7he
Imperial Congress: Crisis in the Separation of Powers, edited
by Gordon Jones and John Marini (New York: Pharos Press, 1989).
2 Johnson v. Transportation
Agency, 94 L. Ed. 615 (1987), at 627,634.
3 This view was explicitly
endorsed by Justice William Brennan, the liberals' champion on the
Court, in a speech to the Text and Teaching Symposium at Georgetown
University, October 12, 1985, in 7he Great Debate: Interpreting
Our Written Constitution (Washington: The Federalist Society,
1986), p. 17. Brennan Rejects "any static meaning [the
Constitution) may have had in a world that is dead and gone."
4 Tradition and Morality in
Constitutional Law (Washington, D.C.: American Enterprise
institute, 1984), p. 8.
5 Letter to the editor, The
Wall Street Journal, September 24,1987.
6 Gordon Wood, The Creation
of the American Republic (New York: W.W. Norton and Co.,1972),
pp. 61, 64.
7 The conversation is quoted
from the "Dialogue" accompanying Joyce Appleby, "The Republican
Roots of Our Constitutional Order," The Center Magazine,
May-June 1986, p. 12.
8 The expression is from
George Will, Statecraft as Soulcraft (New York: Simon and
Schuster,1983), p.18. Allan Bloom indicates that he shares
Will's view of the founding (although he is deliberately more
ambiguous about it) in his Closing o fthe Ametican Mind (NewYork:
Simon and Schuster, 1987), pp. 28, 97, and elsewhere. See Thomas G.
West, "Allan Bloom and America," Claremont Review of Books,
9 Donald S.Lutz, "The Relative
Influence of European Writers on Late Eighteenth-Century American
Political Thought," American PoliticaI Science Review 78
(March 1984), p.193.
10 For a full account, see
Thomas G. West, "The Classical Spirit of the Founding," in J.
Jackson Barlow, Leonard W. Levy, and Ken Masugi, eds., The
American Founding.- Essays on the Formation of the
Constitution (New York: Greenwood Press, 1988).
11 Gordon Wood is a leading
advocate of this fashion.
12 West, "Classical Spirit
of the Founding," op. cit.
13 Brennan, 1985, op.
14 William F. Buckley, Up
from Liberalism (New York: Stein and Day, 1984), p. 193.