100HarvLRev4

Citation: 100 Harv. L. Rev. 4 1986-1987

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THE SUPREME COURT1985 TERM

FOREWORD: TRACES OF SELF-GOVERNMENT

Frank I. Michelman*

The commitment to a jurisgenerative process that does not defer to theviolence of administration is the judge's only hope of partially extricatinghimself from the violence of the state.

-Robert Cover1

That which was reason in the debate of a commonwealth, being broughtforth by the result, . . . must be law ... Again, if the liberty of a manconsists in the empire of his reason ... then the liberty of a commonwealthconsists in the empire of her laws . . . ; and these I conceive to be theprinciples upon which Aristotle and Livy ... have grounded their assertionthat "a commonwealth is an empire of laws and not of men."

-James Harrington2

* Professor of Law, Harvard Law School. I thank Martha Minow for many helpful sug-

gestions.1 Cover, The Supreme Court, z982 Term - Foreword: Nomos and Narrative, 97 HARv. L.

REv. 4, 59 (1983). Robert Cover died on July 18, 1986, at the age of 42. Legal scholarshipcould scarcely have suffered a more devastating loss. As a model of erudition in the service ofimagination, of wisdom in the service of commitment, Bob Cover had no match. Our ownfriendship was civic. I like to think it would have been more had life brought us more together.This essay is for him. I hope it shows well his inspiration.

Writing in this space three years ago, Bob Cover set before us a constitutional epic of tragicconflict, along with a rich and evocative language with which to comprehend that epic. Theconflict he saw was between the "world-creating" jural immanence of the unified concretecommunity and the "world-maintaining" jural transcendence of the diversified abstract state. Iexplore this conflict at pp. 13-16 below. It is typified by Goldman v. Weinberger, io6 S. Ct.1310 (1986), a case that surely would have touched Bob's passion and fired his critical powers.He was writing - to translate his themes into my vocabulary - on the fate of the republic;not as in "the republic for which it stands" but as in "the republican tradition."

2 J. HARRINGTON, The Commonwealth of Oceana, in THE POLITICAL WORKS OF JAMES

HARRINGTON 170 (J. Pocock ed. 1977) [hereinafter POLITICAL WoRs]. Harrington's remembr-ance is almost certainly the proximate source of our own credal "government of laws and notof men." Our importer was John Adams, our distributor John Marshall. See Marbury v.Madison, 5 U.S. (I Cranch) 137, 163 (18o3); J. ADAMS, 2 PAPERS OF JOHN ADAMS 314 (R.Taylor ed. 1977) (Novanglus Letter No. VII) (referring to Aristotle, Livy, and Harrington asdefining a republic "to be a government of laws, and not of men").

HeinOnline -- 100 Harv. L. Rev. 4 1986-1987

THE SUPREME COURT - FOREWORD

I. PROLOGUE: RULE AND REASON

AIR Force regulations prescribe uniforms on duty.3 The uniformL does not include a yarmulke. In fact, one cannot be in uniformindoors with a hat on, any sort of hat.4 Commanders may at theirdiscretion permit the wearing of nonuniform items, religious or not,which are not visible. Although unobtrusive, yarmulkes are visible.For many Jews, wearing a yarmulke is a matter of religious obliga-tion.5

Simcha Goldman, an Orthodox Jew and ordained rabbi, enteredthe Air Force by way of an armed forces scholarship program throughwhich he both received professional training in psychology and as-sumed a subsequent active-duty obligation. He went on active dutyat March Air Force Base in California, a commissioned officer servingas a clinical psychologist at a base hospital. For many years he alwayswore a yarmulke on duty, without incident. 6

Eventually, Goldman's commander ordered him not to wear hisyarmulke while on duty at the hospital. Goldman's resistance earnedhim a letter of reprimand, a recommendation against extension of histerm of service, and a threat of court-martial proceedings. Goldmansued the Secretary of Defense and others, claiming that to preventhim from wearing his yarmulke in these circumstances or to punishhim for doing so violated his first amendment right of religious liberty.The result was last Term's decision in Goldman v. Weinberger.7

Goldman's suit falls into the broad class of cases in which uniformapplication of regulatory rules (or of rules conditioning receipt ofpublic benefits) is challenged by a group of religious observers forwhom the rules cause special problems of conflict with religious ob-ligation. In these cases, the Court is asked, in the name of the firstamendment, 8 to carve out special exemptions for the objectors. 9

3 The Regulations "describe in minute detail all of the various items of apparel that must beworn as part of the Air Force uniform." Goldman v. Weinberger, io6 S. Ct. 1310, 1314 (1986).

4 Police helmets are excepted. See id. (quoting Air Force regulation 35-10, i-6.h(2)(f)

(198o)). There is also a "narrow exception ... for headgear worn during indoor religiousceremonies." Id. In addition, commanders may at their discretion permit visible religiousapparel, including headgear, in designated living quarters. See id.

S See Brief for the Petitioner at 5, Goldman (No. 84-,097); cf. Defendant's Response toPlaintiff's Request for Admissions No. 5, Joint Appendix at 146, Goldman (No. 84-1097) (notingthat keeping the head covered at all times is a "well-established religious tradition and practiceamong adherents to Orthodox Judaism").

6 See Goldman, io6 S. Ct. at 1311-12.

7 IO6 S. Ct. 1310.

8 "Congress shall make no law respecting an establishment of religion, or prohibiting thefree exercise thereof. . . ." U.S. CONST. amend. I.

9 See, e.g., Bowen v. Roy, io6 S. Ct. 2547 (1986) (considering but not resolving whetherAbenaki parents may be required as a condition of receiving welfare benefits to furnish theirchild's social security number in violation of Abenaki religious beliefs); United States v. Lee,

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Every such case involves not only a specific conflict between theobjector's particular demand for unburdened religious observance andthe state's general regulatory objective, but also a deeper problem ofreligious neutrality. A judicial decision for the objector will requirethe regulator either to withdraw entirely the requirement in questionor to discriminate among citizens on the basis of religion.10

Prior to deciding Goldman's case, the Court on three occasionshad ruled in favor of religious objectors seeking regulatory exemptionon first amendment grounds." In so doing, the Court had fashioneda practice of examining closely the government's asserted reasons forinsisting on remorseless application of its rule to the religious objector.It had required the regulating authority to show both "that an un-usually important interest [was] at stake," and "that granting therequested exemption [would] do substantial harm to that interest."12The standard of review was of the type known as "strict scrutiny.' 3

In Goldman's case a sharply divided Court withheld strict scrutinyand rejected his clalm. 14 Justice Rehnquist's opinion for the Courtdid not abandon strict scrutiny for religious exemption cases generally.

455 U.S. 252 (1982) (holding that an Amish employer may be required to pay a social securitytax, despite the conflict with the Amish religious commitment that the Amish community providefor its own elderly); Thomas v. Review Bd., 450 U.S. 707 (i98i) (holding that a state unem-ployment compensation rule conditioning benefits on quitting one's prior job "for good cause"may not be applied to deny benefits to a Jehovah's Witness who quit rather than produceweapons in violation of religious scruples); Wisconsin v. Yoder, 406 U.S. 205 (1972) (holdingthat a compulsory school-attendance law may not be applied to Amish parents, because itcontradicts the Amish religious commitment to informal communal education and opposition tosecular values); Sherbert v. Verer, 374 U.S. 398 (1963) (holding that a Seventh-Day Adventistmust be exempted from a state's requirement of availability for Saturday work as a conditionof receiving unemployment benefits); Braunfeld v. Brown, 366 U.S 599 (i96i) (applying a Sundayclosing law to businesses of Orthodox Jews required by religion to close on Saturday).

10 See, e.g., L. TRIBE, AMERICAN CONSTITUTIONAL LAW §14-4, at 820-21 (1978); Kauper,

Book Review, 41 TEX. L. REV. 467 (x963).11 See Thomas, 450 U.S. 707; Yoder, 406 U.S. 205; Sherbert, 374 U.S. 398.12 Goldman, io6 S. Ct. at 1325 (O'Connor, J., dissenting) (restating strict scrutiny formulas).

In a fourth case, the Court had endorsed strict scrutiny while concluding that refusal of religiousexemption from a general tax law was "essential to accomplish an overriding governmentalinterest." Lee, 455 U.S. at 257-58. In a fifth case, decided last Term after Goldman, fiveJustices reaffirmed strict scrutiny. Roy, io6 S. Ct. at 216o (Blackmun, J., concurring in part),2166-67 (O'Connor, J., joined by Brennan & Marshall, JJ., concurring in part and dissentingin part), 2169 (White, J., dissenting).

13 See generally L. TRIBE, supra note Io, §14-io, at 851-59 (describing strict scrutiny inearlier religious-exemption cases); Gunther, The Supreme Court, 1971 Term - Foreword: InSearch of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86HARv. L. REv. i (2972) (discussing reasons and methods for strict or heightened scrutiny).

14 See Goldman, lo6 S. Ct. 131o. The vote was five to four. Justice Rehnquist wrote for amajority consisting of himself, Chief Justice Burger, and Justices White, Powell, and Stevens.Justices White and Powell also joined Justice Stevens' separate concurrence. Justices Brennan(joined by Justice Marshall), Blackmun, and O'Connor (joined by Justice Marshall) all fileddissenting opinions.

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THE SUPREME COURT- FOREWORD

Rather, it held strict scrutiny inapplicable to military regulations. Itendorsed a doctrine of extraordinary judicial deference "to the profes-sional judgment of military authorities concerning the relative impor-tance of a particular military interest,"' 5 particularly in matters ofdiscipline, even when freedom of individual expression is at stake. 16

Deference in this case did not quite mean no review. The Courtreported itself satisfied that the line the regulations drew respectingnonuniform items of religious apparel, between the visible and thenonvisible, "reasonably and evenhandedly regulates dress in the inter-est of the military's perceived need for uniformity."1 7 Beyond ap-proving the "nonvisible" criterion for permitted deviations, the Courtsimply accepted the "considered judgment" of military professionalsthat uniformity of dress is very important to the mission of the AirForce. In the professionals' view, uniformity of dress "encourages thesubordination of personal preferences and identities in favor of theoverall group mission"; it fosters "a sense of hierarchical unity" anddevelops "necessary habits of discipline . . . in advance of trouble." 18

The Court was apparently untroubled that the Air Force offeredno detailed or concrete evidence to support its alleged interest whereasGoldman's asserted interest was obvious and uncontested. On Gold-man's side was clear evidence of a serious burden to his enjoyment

Is Id. at 1313.16 The opinion drew upon prior authority as follows:

[W]e have repeatedly held that "the military is, by necessity, a specialized society separatefrom civilian society." . . . "[T]he military must insist upon a respect for duty and adiscipline without counterpart in civilian life," . . . in order to prepare for and performits vital role .... The military need not encourage debate or tolerate protest to the extentthat such tolerance is required of the civilian state by the First Amendment; to accomplishits mission the military must foster instinctive obedience, unity, commitment, and espritde corps .... The essence of military service "is the subordination of the desires andinterests of the individual to the needs of the service."

Id. at 1312-13 (citations omitted). In support of its deferential posture, the Court cited six priordecisions, none of which closely resembles Goldman's case: Chappell v. Wallace, 462 U.S. 296(1983) (denying a damage remedy to an enlisted man for a superior officer's constitutional tort);Rostker v. Goldberg, 453 U.S. 57 (98x) (upholding a males-only draft registration); Brown v.Glines, 444 U.S. 348 (I98O) (upholding a regulation requiring the base commander's priorapproval to circulate or post any written matter on base); Schlesinger v. Councilman 420 U.S.738 (,975) (upholding deference to military courts in court-martial proceedings); Parker v. Levy,417 U.S. 733 (1974) (upholding the discipline of an officer for refusal to obey orders and forcriticizing army personnel and policy); Orloff v. Willoughby, 345 U.S. 83 (I953) (holding that aphysician inducted under the Doctors' Draft Act was not entitled to commissioned-officer statuswhich was denied him because he claimed fifth amendment privilege rather than disclose politicalassociation). None of these cases posed or even approached a problem of forcing a servicemanto choose between military discipline and abandonment of continuing, daily, obligatory religiousobservance.

17 Goldman, io6 S. Ct. at 1314.18 Id. at 1313. The Court further affirmed the military's need for "'virtually reflex'" com-

pliance with orders without "'debate or reflection.'" Id. (quoting Chappell, 462 U.S. at 300,described above at note x6).

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of religious freedom, in the form of an imposed choice between per-formance of religious obligation and punishment for violation of mil-itary orders. On the side of the Air Force, there were only the baredeclarations of professional judgment to show that dress codes in factserve the disciplinary and morale-building objectives claimed forthem. More particularly, there was no evidence that the wearing ofyarmulkes had threatened discipline or esprit, or was likely to do so.

Of the five opinions filed in the case, only Justice Rehnquist's forthe Court seems preoccupied with the question of the judiciary'sproper posture towards the military. Justice Stevens' concurrenceplaced considerably less weight on special deference to military au-thority.19 The dissents of Justices Brennan and Blackmun concededdeference, at least arguendo, but contended, even so, that the Courtmust demand of the military some minimally credible reason to justifya serious imposition on religious devotion or expression and that inthis case none was produced. Justice O'Connor's dissent applied strictscrutiny.

What is most striking about the concurring opinion of JusticeStevens and the dissenting opinions of Justices Brennan, Blackmun,and O'Connor is the focus they share on the problem of the relationbetween legal formality and the reconciliation of social differences.20

Each struggled with conflicting impulses toward uniform applicationof law and responsiveness to individual situations. In speaking to thisdilemma, the Justices addressed more fundamental questions aboutwhat counts as a good reason for a legal result. We may approachthose questions by considering each opinion in turn, in the order inwhich they are officially reported.

STEVENS: Goldman presents an appealing case for an exception tothe rules. 2 ' His station and duties are such that allowing him "amodest departure from the uniform regulation creates almost no dan-ger of impairment of the Air Force's military mission. '22 What, then,forbids such a departure? Neutrality does, and the rule of law.

19 The "neutrality" argument made by Justice Stevens, see infra pp. 8-9, is fully applicable

to nonmilitary religious-exemption cases and in fact appeared in an opinion he filed in such acase four years ago. See United States v. Lee, 455 U.S. at 252, 261 (1982).

20 Legal doctrine is "formal" insofar as it sorts out cases according to one or a few highlygeneral features (such as the "visibility" of a nonuniform item of apparel) and in that senseabstracts cases from their concrete contexts (like a law student's "case abstract"). See generallyKennedy, Legal Formality, 2 J. LEG. STUD. 35, (1973) (discussing generally the aims andproblems of legal formality).

21 "His devotion ... is ... apparent. The yarmulke is a familiar and accepted sight. Inaddition to its religious significance . . [it] may evoke the deepest respect and admiration -the symbol of a distinguished tradition and an eloquent rebuke to the ugliness of anti-Semitism."Goldman, io6 S. Ct. at 1314-15 (Stevens, J., concurring) (footnotes omitted).

22 Id. at 13,5.

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We have to accept as "legitimate and rational" the professionallyattested interest of the Air Force in uniformity of dress "itself. '23 Notevery request for deviation can be granted. We must, then, considerhow such requests are to be appraised. Justice Brennan thinks theyshould be evaluated as they arise, under a reasonable standard basedon "'functional utility, health and safety considerations, and the goalof a polished, professional appearance.' "24 He says that Goldman'syarmulke does not present "'so extreme, so unusual, or so faddish animage that public confidence in his ability to perform his duties willbe destroyed."' 25 That is true; Justice Brennan's test would indeedproduce a happy result for Goldman. But then what do we say abouta Sikh's turban, or a Rastafarian's dreadlock?

If exceptions from dress code regulations are to be granted on thebasis of a multifactored test such as that proposed by Justice BREN-NAN, inevitably the decisionmaker's evaluation of the character andsincerity of the requestor's faith - as well as the probable reaction ofthe majority to the favored treatment of that faith - will play acritical part in the decision. For the difference between a turban ora dreadlock on the one hand, and a yarmulke on the other, is notmerely a difference in "appearance" - it is also the difference betweena Sikh or a Rastafarian, on the one hand, and an Orthodox Jew onthe other. The Air Force has no business drawing distinctions betweensuch persons when it is enforcing commands of universal application.

As the Court demonstrates, the rule that is challenged in this caseis based on a neutral, completely objective standard - visibility ....An exception for yarmulkes would represent a fundamental departurefrom the true principle of uniformity that supports that rule. 26

[By objectivity in a regulatory standard, Justice Stevens evidentlymeans that the standard's application is relatively automatic and in-contestable, calling for no debatable evaluation of the concrete inter-ests appearing in a particular case. By neutrality, Justice Stevens

23 Id. at 1315-16.24 Id. at 1315 (quoting id. at 1319 (Brennan, J., dissenting)). Justice Stevens quotes the

dissenting opinion of Justice Brennan, who urged that deference should be reserved for "rulesthat have a reasoned basis in, for example, functional utility, health and safety considerations,and the goal of a polished, professional appearance." Id. at 1319 (Brennan, J., dissenting)(emphasis in original) (footnote omitted). Although Justice Brennan plainly said that it is therules in the dress code which should be tested by a functional standard, Justice Stevensapparently read him as proposing that each application of a rule, that is, each denial of arequest for deviation, should be so tested. Justice Stevens' (mis)reading permits him to chargeJustice Brennan with giving "no weight to the separate interest in uniformity itself," id. at 13,5(Stevens, J., concurring), a charge that seems harder to maintain if we take Justice Brennan athis word.

25 Id. at 1316 (quoting id. at 1319 (Brennan, J., dissenting)).26 Id. (Stevens, J., concurring) (footnote omitted).

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evidently means that the standard makes no reference to culturallymeaningful personal or social factors that are not obviously and di-rectly related to functional, regulatory aims. 2 7]

BRENNAN: 28 "Uniformity" of treatment under the Air Force dresscode is illusory. Real equality cannot be attained by such a flat andhighly general rule for deviations as "nonvisibility." That rule "permitsonly individuals whose outer garments and grooming are indistinguish-able from those of mainstream Christians to fulfill their religiousduties .... The practical effect . . . is that, under the guise of neu-trality and evenhandedness, majority religions are favored over dis-tinctive minority faiths."29

Moreover, a requirement of specific, functional justification foreach dress rule would help prevent those in authority from mistakingprejudice for necessity:

Definitions of necessity are influenced by... experiences and values.... The military, with its strong ethic of conformity and unques-tioning obedience, may be particularly impervious to minority needsand values. A critical function of the Religion Clauses of the FirstAmendment is to protect the rights of members of minority religionsagainst quiet erosion by majoritarian social institutions that dismissminority beliefs and practices as unimportant because unfamiliar. Itis the constitutional role of this Court to ensure that this purpose ofthe First Amendment be realized. 30

BLACKMUN: Once we grant, as we must, the legitimacy of anyuniform-dress requirement, we must also grant that most of its details

27 "Culturally meaningful" factors are those - typified by race, sex, and religion - that are

loaded with social-status implications or with stereotypic connotations of ability or inclinationor are otherwise socially invested with special potential for insult, conflict, or divisiveness. Seegenerally Lawrence, The Id, the Ego, and Equal Protection: Reckoning with UnconsciousRacism, STAN. L. RaV., (forthcoming 1986) (discussing cultural meaning as a significant aspectof a law's motivation and effect). Certain "functional aims" (for example, the aim of subjugatingracial minorities) must of course be disallowed as themselves nonneutral. At that point, neu-trality can no longer be described in formal terms.

28 Justice Brennan had a lot more to say. Here is a sample: the Court has abdicated its roleas constitutional expositor and protector of personal liberties in favor of "credulous deference."Goldman, io6 S. Ct. at 1316 (Brennan, J., dissenting). Goldman's religious-liberty claim issubstantial - "he was asked to violate the tenets of his faith virtually every minute of everywork day" - and "entitled to meaningful review." Id. at 1317. Even the military must beheld to provide some credible reason for such an imposition but none is offered. The contentionthat the wearing of yarmulkes will subvert armed-forces discipline is incredible and unsupportedby evidence or argument. Air Force members are fully aware of their diversity of faiths andbackgrounds. Yarmulkes cannot threaten any Air Force group identity. "To the contrary, ayarmulke worn with a United States military uniform is an eloquent reminder that the sharedand proud identity of United States serviceman [sic] embraces and unites religious and ethnicpluralism." Id. at 1319.

29 Id. at 1320 (Brennan, J., dissenting) (emphasis in original); see L. TRIBE, supra note 1o,§ 14-4, at 821.

30 Goldman, io6 S. Ct. at 1321-22 (Brennan, J., dissenting).

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will in some sense be arbitrary and hence indefensible on functionalgrounds. Deviations may threaten no specific, securely neutral func-tional goals, such as safety, but only those more elusive ones suppos-edly served by uniformity itself. Thus the only way to sort outdeviation requests may be for the regulator to consider:

the degree to which [various deviations] detract from the overall imageof the service .... To allow noncombat personnel to wear yarmulkesbut not turbans or dreadlocks because the latter seem more obtrusive- or, as Justice BRENNAN suggests, less "polished" and "profes-sional,". . . would be to discriminate in favor of this country's moreestablished, mainstream religions [such as Orthodox Jewry] the prac-tices of which [such as wearing yarmulkes] are more familiar to theaverage observer .... In general, I see no constitutional difficulty indistinguishing between religious practices based on how difficult itwould be to accomodate them, but favoritism based on how unobtru-sive a practice appears to the majority could create serious problemsof equal protection and religious establishment, problems the Air Forceclearly has a strong interest in avoiding by drawing an objective lineat visibility.3 '

[As Justice Brennan turned the tables on Justice Stevens, so JusticeBlackmun turned them on Justice Brennan. Justice Brennan showedthat by using the objective and formally neutral combination of pre-scribed uniform plus allowance for "nonvisible" deviations, the authorsof the regulations had effectively disfavored minority as comparedwith majority religious groups. Justice Blackmun in turn showed thatif the objective standard were exchanged for a flexible, ad hoc test,applications of that test would inevitably disfavor some minority re-ligions by comparison with others. 32]

O'CONNOR: The Court ought not decide this case without "artic-ulat[ing] and apply[ing] an appropriate standard for a free exerciseclaim in the military context."33 From prior, nonmilitary religiousexemption cases we can derive two general principles:

First, because the government is attempting to override an interestspecifically protected by the Bill of Rights, the government must show

31 Id. at 1323 (Blackmun, J., dissenting). Justice Blackmun's only stated reason for rejecting

this argument, which he credited to the Air Force, was the absence of positive evidence thatthere would in fact be many requests for exemption that could not be denied on persuasivelyneutral, functional grounds. See id.

32 Justice Brennan's opinion contains an argument, perhaps in response to this point ofJustice Blackmun's, that favoring Orthodox Jews over Sikhs (if that would in fact result fromthe more ad hoc approach he urged) would in itself be no worse than favoring most Christiansover Orthodox Jews; his opinion implies that the total result would be more constitutionallysatisfactory because fewer persons in all would suffer restrictions of religious freedom. See id.at 1320 (Brennan, J., dissenting).

33 Id. at 1324 (O'Connor, J., dissenting).

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that the opposing interest it asserts is of especial importance beforethere is any chance that its claim can prevail. Second, since the Billof Rights is expressly designed to protect the individual against theaggregated and sometimes intolerant powers of the state, the govern-ment must show that the interest asserted will in fact be substantiallyharmed by granting the type of exemption requested by the individ-ual.3 4

These principles are perfectly applicable to military cases. Any specialmilitary needs simply enter into the balances. No extraordinary ruleof institutional status or deference is needed. Applying the first prin-ciple, the military need for discipline and esprit "unquestionably"meets the test. Applying the second principle, there is "no sufficientlyconvincing proof in this case to support an assertion that granting anexemption of the type requested here would do substantial harm.' 35

The military's own regulations contradict its asserted need for absoluteuniformity, inasmuch as they allow for a degree of personal variationand affirm that "each member has the right, within limits, to expressindividuality through ... appearance."3 6 Goldman's yarmulke pres-ents no conceivable threat to health and safety. The court belowfound, "in this particular case," that Goldman's yarmulke had nevercaused discontent or breach of discipline. "On the facts of this case,therefore, I would require the Government to accommodate the sincerereligious belief of Captain Goldman."3 7

The questions raised by the opinions of Justices Stevens, Brennan,Blackmun, and O'Connor - of generality and particularity, samenessand difference, rules and reasons - are fateful ones for current ju-dicial struggles over such matters as discrimination,38 affirmative ac-tion,39 and community self-determination, 4 0 as well as for the generalmovement of legal imagination and understanding of law's province

34 Id. at 1325.35 Id. at 1326 (emphasis in original).36 AFR 35-10, I-12.a.(2) (1978), quoted in Goldman, io6 S. Ct. at r326 (O'Connor, J.,

dissenting). The tolerance for variation apparently contemplates rings and bracelets and a degreeof hairstyle choice. See id. at 1314 (Rehnquist, J., for the Court); id. at 1319 (Brennan, J.,dissenting).

37 Goldman, io6 S. Ct. at 1326 (O'Connor, J., dissenting).38 See, e.g., Bazemore v. Friday, io6 S. Ct. 3000, 3012-19 (1986); City of Cleburne v.

Cleburne Living Center, 105 S. Ct. 3249 (1985); Mississippi Univ. for Women v. Hogan, 458U.S. 718 (1982); cf. Bowen v. American Hosp. Ass'n, io6 S. Ct. 2101, 2114-15 (1986) (holdingthat federal "Baby Doe" regulations, requiring hospitals to treat handicapped infants despiteabsence of parental consent, were not authorized by a statute forbidding discrimination byreason of handicap); Meritor Savings Bank, FSB v. Vinson, io6 S. Ct. 2399, 2404-07 (x986)(holding that the creation of a "hostile environment" in the workplace by sexual harassment isstatutorily proscribed sex discrimination).

39 See, e.g., Wygant v. Jackson Bd. of Educ., io6 S. Ct. 1842 (1986).40 See, e.g., City of Renton v. Playtime Theatres, Inc., io6 S. Ct. 925 (1986); Moore v. City

of East Cleveland, 431 U.S. 494 (i977).

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and possibilities. These questions are at the core of much contem-porary discussion by legal scholars of the vices and virtues of legalityand rights consciousness. 41 They correspond to a parallel set of prob-lems troubling other normative disciplines42 and thus confirm law'scontemporaneity within a broader world of values and ideas.

Goldman v. W1einberger is a Coverian parable. Simcha Goldman'sclaim represents his membership in what Robert Cover called a "pai-deic" community. Such a community is formed by strong interpersonalbonding through shared commitment to a specific moral tradition andits contemporary elucidation. 43 The work of elucidation is the com-munity's paideia,44 through which the members find personal integrityand moral freedom. By their joint engagement in that work - ofclarifying the history and the current meanings of their shared precepts- they constantly create their "nomos" or "normative universe." 45

Goldman, standing with his yarmulke against "imperial" proscrip-tion,46 represents paideic integrity. He adds his verse to that chapterof paideic narrative from which the preceptual practice of head-cov-ering gathers its meanings. 47

Against Goldman's paideia stands law's empire, represented by itsjudicial servants. Justice Stevens' opinion speaks clearly for their"world-maintaining"48 service - "the constraint of peace" that impar-tial rules, objectively applied, may impose "on the void at whichstrong bonds cease."'49 Justice Stevens insists on uncompromising ap-plication of an abstractly impartial rule (the "non-visibility" standardfor religious apparel), not for the sake of unity as such, or obedienceas such, but for the sake of a world in which a plurality of commu-

41 See, e.g., C. MACKINNON, Desire and Power, in FEMINISM UNMODIFIED (forthcoming1986); C. MACKINNON, Francis Biddle's Sister: Pornography, Civil Rights, and Speech, inFEMINISM UNMODIFIED; Minow, Learning to Live with the Dilemma of Difference: Bilingualand Special Education, LAW & CONTEMP. PROBS., Spring 1985, at i57; Tushnet, An Essay onRights, 62 TEX. L. REV. 1363 (1984).

42 See infra pp. 24-33.43 See Cover, supra note I, at 12-13.44 That is, its process of collective enlightenment of its members through their reflections on

their shared cultural inheritance, and their way of living well through engagement in thatprocess. See I W. JAEGER, PAIDEA: THE IDEALS OF GREEK CULTURE at v (G. Highet trans.2d ed. 1945).

45 Cover, supra note I, at 4, 12.

46 "Imperial," for Cover, denotes the stance of the central authority, the nation-state, devotedto keeping peace and practical order among the country's plurality of subcultural normativeworlds. See id. at 13 & n.36.

47 In Cover's account, the preceptual tradition becomes a nomos by location within historical"narratives" that imbue it with contemporary meaning. See id. at 4-5 ; infra pp. 64-66(discussing the narrative medium for construing a body of norms).

48 Cover, supra note i, at 13.49 Id. at 6. "The sober imperial mode of world maintenance holds the mirror of critical

objectivity to meaning, imposes the discipline of institutional justice upon norms, and placesthe constraint of peace on the void at which strong bonds cease." Id.

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nities may safely coexist.5 0 He belittles neither his colleagues' impulseto accommodate nor the concrete appeal of Goldman's situation. Forhim, that impulse and that appeal are outweighed by the perceptionthat, in the particular setting before him, exceptions - either en masseor in the only selective pattern he can imagine - will void the regimeof both clean justification and pacific power.

Justice Stevens' imperial stance in Goldman thus seems an act ofpersonal responsibility, not of submission to transcendent necessity.It seems a conscious choice between universe and context, in thecircumstances of this case. 5 ' Other Justices arrive conscientiously atother stances. Justice Blackmun stands a small step closer than JusticeStevens to context and accommodation: he would concur with JusticeStevens, given some concrete reason to believe the setting to be aspotentially explosive as Justice Stevens imagines.5 2 Justice O'Connorstands, in Goldman's case, even closer to the pole of "context," thoughstill within the tug of the pole of "universe." She will not judge thiscase - or, one infers, any case - without reference to some clearlyarticulated standard deemed apt for cases of its general class; but shewill deem apt, for cases like Goldman's, a standard calling for ap-praisal, in full context, of the specific needs and interests of theparticular persons whose fates she decides.5 3 Justice Brennan calls,

so "[Jiudges are . . . people of peace. Among warring sects, each of which wraps itself in

the mantle of a law of its own, they assert a regulative function that permits a life of law ratherthan violence." Id. at 53.

51 Certainly Justice Stevens is not habitually given to such an uncompromisingly imperialisticstance as the one he took in Goldman. For example, in last Term's Wygnant case he (i) rejectedthe proposition that a school board's voluntarily adopted scheme of preference for minorityteachers in hirings and lay-offs could be justified only as a remedy for past unlawful discrimi-nation against the favored teachers; (ii) posed the issue as that of "whether the Board's actionadvances the public interest in educating children for the future" in a degree sufficient to justify"any adverse effects" on white teachers; and (iii) explored the issue thus framed with referenceto particular features of the case before him. Wygant v. Jackson Bd. of Educ., io6 S. Ct.1842, 1867-71 (Stevens, J., dissenting).

52 Justice Blackmun's ties to both universe and context are fully expressed within the confinesof one haunting opinion, his Bakke dissent. There he expresses both his hope for a country sofree of socially constructed disadvantage that what is universal will accord with what is just,and his knowledge that ours is not yet that country:

I yield to no one in my ... hope that the time will come when an 'affirmative action'program is ... a relic of the past .... At some time, . . . the United States must andwill reach a stage of maturity where action along this line is no longer necessary. Thenpersons will be regarded as persons ....

To ask that [a successful affirmative action program be arranged in a raciallyneutral way] ... is to demand the impossible. In order to get beyond racism, we mustfirst take account of race. There is no other way.

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 403, 407 (1978) (Blackmun, J., dissenting).53 For Justice O'Connor, too, the degree of imperiality varies with the setting. Compare

Goldman, io6 S. Ct. at 2324, 1326 (O'Connor, J., dissenting) (favoring case-by-case evaluationof governmental and individual interests affected by requested deviations from military dress

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in Goldman's case, for contextual appraisal without proposing anystandard.

54

Clearly, then, adoption of the imperial stance with respect to aparticular case, or kind of case, can and therefore ought to be ajudicially responsible act. Still there remains in that stance, wheneveradopted, some element of flight from responsibility or from whatRobert Cover called "commitment."55 "Objective" legal standardsseem to absolve judges of responsibility for the fates of individualparties. 56 "Neutral" legal standards seem to absolve their promulga-tors - sometimes the very judges who apply them - of responsibilityfor their contributions to socially unequal or conflictual outcomes. 5 7

Accordingly, a judge's commitment to imperial responsibility also in-volves a certain withholding of commitment. In this circumstance liesthe pathos of the judicial role, and its irony, which Robert Coverexpressed in the ironic label he gave it: "the jurispathic office."58

The extreme example of the jurispathic office is the judicial com-mitment whose outward form is deference. This is commitment, bydeference, to what Cover called "the violence of administration," 59 bywhich he meant the impulse to make "the regime of obedience" 60 self-justifying and so to subordinate the dynamics of legal meaning to thestatics of public order. The Court's opinion in Goldman v. Weinbergerexemplifies such deference. An authoritarian impulse seems manifestin the opinion's very wavering between deference and assertion. The

code), with Roberts v. United States Jaycees, 104 S. Ct. 3244, 3257 (1984) (O'Connor, J.,concurring) (preferring a categorical test of an organization's general character as a constitution-ally protected "expressive" association over the majority's case-by-case test of particular mem-bership decisions' impact on the organization's expressive activities).

54 Justice Brennan's opinion does not deny the value of a standard. It rather denies thatany acceptable standard of justification for a serious imposition on religious liberty could bemet on the facts of this case. Compare Goldman, io6 S. Ct. at 1319 (Brennan, J., dissenting)(favoring contextual evaluation of particular military dress rules), with McGautha v. California,402 U.S. 183, 248 (x97i) (Brennan, J., dissenting) (praising the rule of law and decryingstandardless death-sentencing by juries).

55 See Cover, supra note i, at 44-46, 53-59, 66-67.56 For a definition of "objective," see supra p. 9. Given an ideally objective standard, the

judge has nothing to do but apply the standard automatically to the case,57 For a definition of "neutrality," see supra pp. 9-io. If a regulation is ideally neutral, the

unequal outcomes can be considered an accident of the regulation's impersonal, functional policy;the inequality is not itself anyone's policy. See, e.g., Ely, Legislative and AdministrativeMotivation in Constitutional Law, 79 YALE L.J. 1205, 1255-56 (,970).

58 Cover, supra note i, at 53. "Confronting the luxuriant growth of a hundred legal tradi-tions, [judges] assert that this one is law and destroy or try to destroy the rest." Id. Covermay have meant to suggest that empire and paideia, or state law and nomos, are absolutelyincompatible principles. If that were so, it would follow that the judicial role cannot itselfpartake of any paideia or any nomos. Whether or not this was Cover's view, it is not mine. Seeinfra pp. x6-I7, 76.

59 Cover, supra note i, at 57.60 Id. at 55.

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opinion stops short of total deference but only at the point of bareaffirmation, unsupported by evidence and unaccompanied by expla-nation, of the legitimacy not only of the general military goals of espritde corps and habit of obedience, but also of the particular means -evidently repressive and dubiously necessary - under challenge inGoldman's case. 6 1

This Foreword will explore the problem of legal imperiality andespecially its relation to personal freedom and self-government. I hopeby that exploration to extend or expand - I could not possibly deepen- the reasons Robert Cover has already provided for objection tojudicial performances like the majority's in Goldman v. Weinberger.I will also explore further what is at issue between Justice O'Connorand other Justices in the Goldman case. 62 A chief vehicle for theseexplorations will be a consideration of the so-called "republican" or"civic" tradition in political thought, which has recently become anobject of great interest in the professional study - and soon, perhaps,in the standard teaching - of American constitutional law. 63

Republicanism also has some light to shed on the familiar questionof the nondemocratic character of the Supreme Court and indeed ofthe very project of "constitutional law." That question has typicallybeen posed in terms of a "counter-majoritarian difficulty" - AlexanderBickel's phrase for the perception that sitting legislatures more trulyexpress the people's will than do old and judicially much-mediatedtexts.64 My reading of the republican tradition, and its relation toAmerican constitutionalism, points away from the counter-majoritar-ian difficulty as the true focus of democratic concern. 65 Not surpris-ingly, that reading confirms that, however Bickel's difficulty may ormay not be resolved, the Court is, vis-a-vis the people, irredeemablyan undemocratic institution. It suggests, further, that counter-counter-majoritarian remedies - such as more judicial deference to the "po-litical" branches - only aggravate a problem they cannot fix. In theend I will suggest that it is as much the Court's office to constituteits own paideia as to hold the fort of law's empire. To say it another

61 Justice (now Chief Justice) Rehnquist, the author of the Court's opinion, does not alwaystake a deferential stance towards "administration." See, e.g. Garcia v. San Antonio TransitAuth., 1o5 S. Ct. oo5 (i985) (Rehnquist, J., dissenting) (reaffirming his stance in NationalLeague of Cities v. Usery, 426 U.S. 833 (1976), which was overruled by Garcia); Kaiser Aetnav. United States, 444 U.S. 164 (1979).

62 We are not through with the Goldman opinions. See infra pp. 33-36.63 For a description of traditional republicanism and its current resurgence in constitutional

study, see pp. 17-19 below.64 A. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF

POLITICS 16-17 (1962).

65 Here I am merely elaborating on the work of Bruce Ackerman. See Ackerman, TheStorrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013 (1984) (discussed below atpp. 59-65).

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way, if the Justices have any way to further the cause of our self-government, it lies through the exercise of their own.

Developing this point of view will involve us in a reexaminationof the ideal of the empire of laws and not of men. I hope to contributeto the retrieval of an old sense of that expression - a republicansense, I will propose - which differs from both John Marshall'sremedial sense 66 and John Stevens' formal one. 6 7

This republican sense of the empire of laws and not men rejectsthe foisting of responsibility for the immediate decision of a publiccontroversy upon any nonpresent, unexaminable, impersonal, or ab-stract authority - the sovereign, the law, the rule, the precedent, theAir Force. It demands, instead, acceptance of unmediated responsi-bility by those present and acting at the moment of decision. It mayseem that this is precisely the empire of men and not laws. How onemight think otherwise must await the work of retrieval. 68

II. THE REPUBLICAN TRADITION

A. Contemporary Appropriation

i. American Constitutional Thought. - Republicanism is not awell-defined historical doctrine. As a "tradition" in political thought,it figures less as canon than ethos, less as blueprint than as conceptualgrid, less as settled institutional fact than as semantic field for nor-mative debate and constructive imagination. 69 In the professionalspecialties of American constitutional law and theory, republicanismnow appears in a certain role adapted to the work of those specialties.The role is that of a counter-ideology, a normative political vision to

66 Chief Justice Marshall used the phrase to mean that when "vested legal rights" are violated

judicial remedies must follow, without exception or excuse. See Marbury v. Madison 5 U.S. (ICranch) 137, 163 (1803).

67 In his Goldman opinion, Justice Stevens upholds the modem idea of the rule of lawunderstood as legal doctrine's formal attributes of neutrality and objectivity. See supra pp. 8-10.

6s See infra pp. 41-43. I will not proceed, however, without pointing to a special sense in

which the abstraction of normative authority may indeed be called the rule of men. See C.GILLIGAN, IN A DIFFERENT VOICE (1982); infra note 143 and accompanying text. Some recentwork in feminist jurisprudence comes as close as any I know to reviving what I will suggest isa republican sense of law. See infra pp. 28-33. And while surely a person's gender does notdetermine her jurisprudential stance, it is noticeable that many aspects of that sense of law,resonant with themes found in current feminist discussion, appear in Justice O'Connor's Goldmanopinion. See infra pp. 33-36; cf. Sherry, Civic Virtue and the Feminine Voice in ConstitutionalAdjudication, 72 VA. L. REV. 543 (1986) (studying the opinions of Justice O'Connor as possiblymanifesting the "feminine voice").

69 According to its profoundest expositor, this characterization has always held true. See,e.g., Pocock, Virtues, Rights, and Manners: A Model for Historians of Political Thought, 9POL. THEORY 353 (1981).

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set against the vision believed to have predominated in the thoughtof the framers and in the Constitution they framed. Such a visionary"opposite," if reasonably clear and coherent, may serve a number ofheuristic and argumentative functions important to constitutional law-yers. 70 Viewed as a rejected alternative, the "opposite" can be usedto clarify the assumptions and aims of the prevailing scheme. 71

Viewed as a partially accepted or surviving competitor, it offers law-yers both a framework for interpretive debate 72 and a premise for"deviationist doctrine." 73 We can dispute constitutional issues, andinnovate doctrinal futures, by debating the extent to which the "op-posite" survived and entered into the Constitution as a detectable,significant influence, fairly invocable in the work of interpretation.

In just this spirit, apparently, the authors of our newest constitu-tional law casebook 74 have introduced republicanism at the very outsetof their book, presumably to serve as a basic reference point through-out the course. A good way to approach the thought of the framers,they say, is through the views of their adversaries, the antifederalists;and antifederalist thought "derived in large measure from classicalrepublicanism, a theory of government that influenced, among others,Montesquieu and Rousseau." 75

In the ensuing brief sketch of the republican and antifederalistcase, 76 the authors highlight two central, organizing ideas: civic virtueand general good. 77 These two ideas are closely related. Republican-ism's "animating principle" is said to be civic virtue. Civic virtue isin turn defined as "the willingness of citizens to subordinate theirprivate interests to the general good." 78 Cultivation of this public

70 See Nedelsky, Confining Democratic Politics: Anti-Federalists, Federalists, and the Con-

stitution (Book Review), 96 HARV. L. REV. 340 (1982) (illustrating and suggesting the range ofpossibilities).

71 See, e.g., Note, The Origins and Original Significance of the Just Compensation Clauseof the Fifth Amendment, 94 YALE L.J. 694 (i985).

72 See, e.g., Ackerman, supra note 65; Sunstein, Interest Groups in American Public Law,38 STAN. L. REV. 29 (1985) (discussed below at pp. 58-59).

73 See, e.g., Forbath, The Ambiguities of Free Labor: Labor and the Law in the Gilded Age,1985 Wis. L. REV. 767, 774-75 & n.14, 813-14; Sherry, supra note 68. "Deviationist doctrine"is Roberto Unger's phrase for legal doctrinal work that builds on normative elements that aredetectably, but also subordinately, present in the received doctrinal materials. See Unger, TheCritical Legal Studies Movement, 96 HARv. L. REV. 561, 576-83 (1983).

74 See G. STONE, L. SEIDMAN, C. SUNSTEIN & M. TUSHNET, CONSTITUTIONAL LAw (1986)[hereinafter CONSTITUTIONAL LAW].

75 Id. at S. Antifederalists were those who opposed ratification of the Constitution. Feder-alists supported it. See H. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR (198i).

76 See CONSTITUTIONAL LAW, supra note 74, at 5-6.77 Stone and his fellow editors are not the first law casebook editors to present the classical

tradition in politics to students in a distinctly solidaristic light. See F. MICHELmAN & T.SANDALOW, MATERIALS ON GOVERNMENT IN URBAN AREAS 9-10 (1970).

78 CONSTITUTIONAL LAw, supra note 74, at 5.

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spirit is "government's first task." 79 Republicanism favors a highlyparticipatory form of politics, involving citizens directly in dialogueand discussion, partly for the sake of nourishing civic virtue. Thusrepublican politics consists of self-rule. It is, however, "self-rule of aparticular sort": not the pursuit of self-interest but the "[selection of]the values that ought to control public and private life." 80

Proponents of republicanism believed that their aims were linkedclosely with the size and composition of the political community. Thecasebook tells us that the antifederalists opposed expansion of thepowers and status of the national government at the expense of thoseof states and localities, on two grounds. First, the expanded nationalsphere would be characterized by a plurality of outlooks and clashesof interest. It would lack the spiritual and material homogeneity,maintainable only in small communities, required to support andreward unselfish devotion to the common good on which, in thetraditional republican view, "genuine freedom" depends. 8 1 Second,the relationship between citizens and the national government wouldbe distanced, mediated by representatives who would actually makethe decisions. Citizens would be deprived of the experience of "face-to-face ... deliberation and debate" which "inculcate[s] civic vir-tue."'8 2 In sum, antifederalists contended, the federalist Constitutionwould "undermine the system of decentralization on which true libertydepended."8 3

A problem with the casebook's account is that it leaves republi-canism's appeal unexplained. In what may be considered a companionessay by one of the casebook's coauthors,8 4 Cass Sunstein, emphasiz-ing the deliberative aspect of the republican view of politics, calls itan "attractive conception, 8 5 suitable for use as an evaluative standardin judicial review of political processes and outcomes.8 6 But thecasebook version suggests no reason, persuasive to modern liberalsensibility, for valuing the republican conception enough to argue forits survival or renewal. 87 Yet without substantial appeal in its own

79 Id.SO Id.81 Id.82 Id. at 6.

83 Id.S4 See Sunstein, supra note 72, at 31-32, 35-38 (setting forth at greater length an account

of the republican vision similar to that in the casebook).85 Id. at 30. Sunstein also calls attention to some unattractive features of classical republican

doctrine, namely, militarism and class hierarchy. See id. at 30 n.8.86 See id. at 31. Sunstein argues that the republican normative conception of politics as a

joint, good faith deliberation about the public good both underlies and suggests reform ofdoctrines of judicial review of the "rationality" of statutes and of various aspects of administrativeprocess. See id. passim.

87 By modern liberal sensibility I do not mean only, or primarily, the privatistic, antipolitical

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right, not just to ancients but also to moderns, antifederalist repub-licanism can have little explanatory or persuasive power in contem-porary interpretive debate.

Not only does the casebook's account leave uncertainty about re-publicanism's positive appeal, it leaves republicanism exposed to ob-jection on grounds of both equality and liberty. Republicanism'sstance towards equality has been a matter of dispute. As the casebookhas it, the republican vision is not only highly participatory andinclusionary, but also redistributive.88 The casebook makes republi-canism an antifederalist ideology, and it makes antifederalists demo-crats. However, this egalitarian picture of republicanism is contro-versial. There are scholars who see republicanism as federalistideology, and federalists as antidemocratic elitists;89 and there aresome others who concur in the casebook's identification of republican-ism with antifederalism, but see antifederalists as conservative andundemocratic.9 o

Those who view republicanism as elitist make two points: first,they say republicanism holds that independent means are a materialcondition of civic virtue and hence are a qualification for office-holdingor even admission to the franchise. Persons who are economicallydependent or insecure are not trusted to set the public good abovetheir own immediate wants or to assert their honest deliberative judg-ments against the wishes of their patrons. 91 Second, they say repub-licanism holds that, wealth aside, there is a natural aristocracy oftalent, for whom the tasks of government should, in everyone's inter-est, be reserved. 92

attitude of "possessive individualism." See C. MACPHERSON, THE POLITICAL THEORY OFPOSSESSIVE INDIVIDUALISM: HOBBES TO LOCKE (1962). I mean a much broader attachment tothe precious "historical accomplishment," Cornell, Toward a Modern/Postmodern Reconstructionof Ethics, 133 U. PA. L. REV. 291, 294 (1986), of Enlightenment and liberal thought, of

delivering individual subjectivity from social conformist oppression. See, e.g., Appleby, WhatIs Still American in the Political Philosophy of Thomas Jefferson, 39 WM. & MARY Q. 287,

297-301 (1982) (describing Thomas Jefferson's "exalted opinion" of the works of French natural-rights theorist Destutt de Tracy).

88 We are told that connected to the aim of fostering civic virtue is that of "avoid[ing] extremedisparities in wealth, education, and power." CONSTITUTIONAL LAW, supra note 74, at 6.

89 See J. APPLEBY, CAPITALISM AND A NEV SOCIAL ORDER: THE REPUBLICAN VISION OF

THE 1790'S 8-19 (1984); Appleby, supra note 87, at 295, 307.90 See generally Hutson, Country, Court and Constitution: Antifederalism and the Historians,

38 WM. & MARY Q. 337, 356-68 (i98i) (reviewing the historiography that portrays antifederalists

as successors to conservative English "country" ideologues and as sharing with federalists mis-

givings about democracy).91 See infra pp. 40-41. This view may be said to find expression in the federalists' consti-

tutional design for large congressional constituencies, for which, they perhaps expected, none

but the relatively wealthy could effectively run. See, e.g., U.S. CONST. art. I, § 2; THEFEDERALIST No. io, at 63 (J. Cooke ed. i96i) (J. Madison).

92 See infra pp. 45-46. This view may be said to find expression in the federalists' consti-

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From the standpoint of liberty, the casebook account itself suggeststwo troubling problems republicanism must resolve. First, equatingself-rule with collective determination, by everyone for everyone, ofregnant values (social and private) seems to overlook the value ofindividual self-determination. Second, giving civic virtue the statusof a first principle, whose cultivation is the first concern of govern-ment, seems to subordinate the independent pursuits of individualsquite severely to societal concerns. Although we are told that in therepublican vision "genuine freedom" depends on civically virtuous self-subordination, we want to know how this can be the case. 93 Howdoes freedom depend on civically virtuous self-subordination? How,moreover, can everyone be self-ruling in the stipulated sense of se-lecting the community's regnant public and private values?94 Is de-liberation a magic guaranteed to create an authentic consensus? Ifnot, does civic virtue in the end really mean giving in, exchangingyour convictions for your civic friend's after you have all deliberatedto impasse? When everyone is civically virtuous, how is it settledwho gives in, if decision is neither by brute voting nor by domination,whether brute or subtle?

Republicanism contests with a so-called pluralist vision, whichregards the political system as, ideally, designed to serve the self-defined private interests of individuals or groups, fairly representedin political forums, where they compete under fair rules for fair sharesof the outputs of public policy.95 We have just seen republicanism onthe defensive in that contest, on both the major fronts of equality andfreedom. Further explanations seem in order.96 In what I have called

tutional design for indirect election of the senators and the president. See U.S. CONST. art. I,§ 3; id. art. II, § 3; THE FEDERALIST, supra note 91, No. 68, at 462-70 (A. Hamilton).

93 Self-emphatic locutions like "genuine freedom" and "true liberty" invite suspicion that someunusual, possibly paradoxical, meaning is intended. We have learned, when we hear somethinglike "genuine freedom," to worry lest "freedom" not mean what we ordinarily think. Are we,for example, going to be forced to be free? See J. ROUSSEAU, The Social Contract, in THESOCIAL CONTRACT AND DISCOURSES 3, IS (G. Cole trans. ed. 1950). Compare the "publicliberty," with which, Sherry says, "individual liberty was presumed synonymous." Sherry, supranote 68, at 553. But cf. id. at 555 (stating that for classical republicans "[i]ndividual libertymay mean the right to pursue private goods; public liberty must mean the right to participatein defining public good.").

94 This is the problem for which Rousseau proposed the general will as answer - without,to speak mildly, widely acclaimed success. See, e.g., A. LEVINE, THE POLITICS OF AUTONOMY:A KANTIAN READING OF ROUSSEAU'S SOCIAL CONTRACT 56, 63-65 (1976) (giving Rousseau asympathetic and admiring reading, but finding that his theory founders on the presupposed butundemonstrated existence of objective right or general interest).

95 See J. ELY, DEMOCRACY AND DISTRUST (1980); Michelman, Politics and Values or What'sReally Wrong With Rationality Review?, 13 CREIGHTON L. REV. 487, 492-99 (1979) [hereinafterPolitics and Values]; Michelman, Political Markets and Community Self-Determination: Com-peting Judicial Models of Local Government Legitimacy, 53 IND. L.J. 145, 148-58 (1977-78);Sherry, supra note 68, at 543; Sunstein, supra note 72, at 32-33.

96 One simple stipulation might seem to dissolve the difficulties: that is, that republican

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his companion essay, Cass Sunstein refers to two additional republicanpremises, one anthropological and one epistemological, which mightsatisfy the need. The anthropological premise is that of "public hap-piness," in a phrase used by Hannah Arendt. 9 7 The epistemologicalpremise is that of "practical reason." 98

"Public happiness" is simply the notion that "[p]articipation ingovernment [is] a positive good, providing a kind of 'happiness' that[can] be found nowhere else." 99 In another typical formulation of thedoctrine, which discloses both classical and renaissance antecedents,"'homo is naturally a citizen and most fully himself when living in avivere civile."' 0 0 By her celebration of the experience of being "seenin action,"' 0 1 as a participant in public affairs, Arendt may seem tohave cast classical republicanism 10 2 in a refreshingly individualisticlight. 103 Here, however, some caution is in order. At its Aristoteliansource, "public happiness" doctrine attributes to human beings a telos,a defining end or purposive essence, preinscribed by nature. 10 4 Butthe idea that citizenship (or any other specific social role or form oflife) is the essence of the human subject runs against the modernliberal temper. It seems that to urge on such grounds the renewal ofcivic life is to reject liberalism's historic deliverance of individualityfrom pre-Enlightenment oppressions of mind and spirit.,0 5

vision is germane only to small communities so homogeneous that disagreements about publicpolicy are always technical (over means) rather than practical (over values or ends). In thatcase, it would be apparent (I) why discussion outranks voting (indeed voting would then seembeside the point); (2) how the process can, in a manner of speaking, "liberate" people frommistakes about the right means to satisfying their actual preferences; and (3) in what sense itmay be said that everyone joins in "selecting" the ends. It would, however, be quite unclearwhy civic virtue is then of any concern, or why general participation, as opposed to the rule ofexperts, is a value. At any rate, if the appeal of republican vision is restricted to cases of small,homogeneous communities, it has little contemporary significance for American constitutionallaw or theory.

97 See H. ARENDT, ON REVOLUTION 111-37 (1963).98 Sunstein, supra note 72, at 36.99 Id.; see H. ARENDT, supra note 97, at 1s.100 Sherry, supra note 68, at 548 (quoting Pocock, supra note 69, at 355).101 H. ARENDT, supra note 97, at 127; see H. ARENDT, THE HUMAN CONDITION 22-23,

175-81 (1958).102 Arendt, of course, drew her inspiration from classical sources; her model was the Aris-

totelian polis. See generally H. ARENDT, THE HUMAN CONDITION, supra note ioi.103 The self-exhibiting aspect of Arendt's conception of public happiness invites criticism on

grounds of elitism and narcissism. See Pitkin, Justice: On Relating Private and Public, 9 POL.THEORY 327, 336-37 (i98i). But Arendt's vision of politics also contains much that is appealingeven to her critics. See id. at 339-49; infra note 129; infra note 13s and accompanying text.

104 The classical slogan is that "man is by nature a political animal; it is his nature to livein a state." ARISTOTLE, THE POLITICS, bk. I, at 28 (T. Sinclair trans. 1962).

105 See Cornell, supra note 87, at 294-95. Teleologies may oppress differentially, makingsome humans fitted for mastership and others for slavery, see, e.g., E. BARKER, THE POLITICALTHOUGHT OF PLATO AND ARISTOTLE 363 (Dover ed. 1959), or some fitted for the great worldand others for the domestic sphere, see, e.g., Bradwell v. Illinois, 83 U.S. (i6 Wall.) 130, 141-

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A similar difficulty seems to lurk in Sunstein's epistemologicalpremise, that of "practical reason." The premise is not only that inpublic discussion people can rise above private interest in pursuit ofthe public good, but also that "debate and discussion help to revealthat some values are superior to others. Denying that decisions aboutvalues are merely matters of taste, the republican view assumes that'practical reason' can be used to settle social issues. 1 0 6

Depending on how strong a sense we give to "reveal" and "settle,"practical reason as thus described might resolve the puzzle of freedomunder the collective determination of values. If a discussion, in whichall have engaged, has literally "revealed" which values are superior towhich (and has, in that sense, disclosed the general good) no one couldhave reason to opt against the revelation. Practical reason so under-stood, however, will seem ominously totalist to modern sensibility. 107

To meet modern individualistic concerns, practical reason must besomething harder to explain. It must be a process of normativejustification without ultimate objectivist foundations - of justifyingsocial choice, in the sense of satisfying all contenders without denyingthat their conflicts, of interest or of vision, are deep and possiblyenduring.

Here, then, is where we stand: republicanism, in what may fairlybe called a standard or conventional description, seems to fall eitherinto what liberal modernity must view as objectionable foreclosure ofhuman possibility (the teleological premise of "public happiness") orobjectionable restraint of individual self-direction (the objectivistpremise of the common good). Republicanism can give up one or theother of these premises, but not both. If it gives up both, there seemslittle left to say on its behalf.

Yet it will be my aim in what follows to show that the republicantradition of civic dialogue retains a strong, if somewhat disguised andtwisted, hold on American constitutional imagination. To understand

42 (Bradley, J., concurring in judgment) (872). On the modern fate of normative teleology, seegenerally A. MACINTYRE, AFTER VIRTUE 55-59 (ist ed. g8i), and Cornell, note 87 above.MacIntyre himself, though strongly drawn to an Aristotelian form of ethical theory, rejectsappeal to any Aristotelian notion of a "functional human nature" or "metaphysical biology" asa normative premise, on both philosophical and political grounds. See A. MACINTYRE, supra,at 152; Cornell, supra note 87, at 307.

106 Sunstein, supra note 72, at 32.

107 Sunstein's own view of deliberative reason, of its possibilities and limits, is much more

sensitive and complex than the one he here ascribes to traditional republicanism. See id. at8o-85; cf. Sunstein, Legal Interference With Private Preferences, 53 U. CHI. L. R~v. (forth-coming 1986) (considering arguments for rejecting private preferences as bases for social choice).Sherry reassuringly emphasizes practical reason's aspects of construction, context, and contin-gency; but even then she finally rests the classical case for collective determination of values ona fundamental perception of "humans... as members of a unitary community." Sherry, supranote 68, at 548; see id. at 552-55 (noting that republicans "conceived of society in organicterms").

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how that can be so, we need a fuller account of the tradition's deepermotivations than the standard version supplies.

The path to understanding, I believe, lies not through "publichappiness,"' 08 but rather through practical reason. Neither commongood nor civic virtue is where the path begins. By a historical ex-cursus I shall suggest that those alleged first principles make theirappearances in the tradition only as conditions of something else,something of prior importance, whose appeal I take to be basic andundeniable: namely, individual freedom. My reading of the historywill not show the standard version mistaken in its ascriptions torepublicanism of either the objectivism of public good or the teleologyof civic virtue. Quite the contrary. I wish rather to suggest why thecivic ideal retains its hold despite its insults to modern liberal sensi-bilities. By the same token, I wish to help clarify what is ultimatelyat stake - freedom, or self-government - in the question of practicalreason's possibility. The nature of that stake may, finally, help explaina role that we attribute to the Supreme Court: that of representingto us the possibility of practical reason.

2. Political and Social Theory. - (a) Freedom and Self-Govern-ment. - Histories, we are advised, are constructed from the stand-point of the present.109 If that is true, then the republican traditionis, on one reading, an historical projection of contemporary rebellionagainst a modern ethical dilemma that has been called the CartesianAnxiety: 110 the sense of entrapment between nihilism on the onehand,"' and domination on the other.1 12 This sense is reflected in

108 But see Michelman, Politics and Values, supra note 95, at 5o6-07.109 See, e.g., Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 70-71, 98-102 (1984).

It is said that "we . . . return[] to the past looking for evidence of issues that [are] central toourselves .. . ." Appleby, The Republican Roots of Our Constitutional Order, 19 CENTER

MAG., May/June 1986, at 3, 5. In so doing, we may "torture" old texts into saying somethingabout our issues when in fact they were addressed to very different ones. Id. That dangercertainly attends this essay.

110 "Cartesian Anxiety" is philosopher Richard Bernstein's term for the sense of being caughtbetween objectivism ("the belief that there are or must be some fixed, permanent constraints towhich we can appeal and which are secure and stable') and relativism (the "message ... thatthere are no ... constraints except those that we ... accept"). R. BERNSTEIN, BEYONDOBJECTIVISM AND RELATIVISM: SCIENCE, HERMENEUTICS, AND PRAXIS I6, 18-19 (1983); see

id. at 16-2o (discussing the nature of Cartesian Anxiety).M "Either there is some support for our being, a fixed foundation for our knowledge, or we

cannot escape the forces of darkness that envelop us with madness, with intellectual and moralchaos." Id. at iS (emphasis in original); see Singer, Radical Moderation, 1985 AM. BAR FOUND.RES. J. 329, 342-43. Perhaps this theme is detectable in the concurring opinion of JusticeStevens in Goldman v. Weinberger, IO6 S. Ct. 1310, 1314-6 (1986) (Stevens, J., concurring),discussed above at pp. 8-io. Note also recent warnings against nihilism in law. See, e.g., Fiss,Objectivity and Interpretation, 34 STAN. L. REv. 739, 740 (1982).

112 "[The relativists claim [that] all species of objectivism almost inevitably turn into vulgaror sophisticated forms of ethnocentrism in which some privileged understanding of rationalityis falsely legitimated by claiming for it an unwarranted universality." R. BERNSTEIN, supra

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the demand, said to be sweeping across the various fields of thought,for recovery of practical knowledge, situated judgment, dialogue, andcivic friendship. 113 The memory of the republic of reason is retrieved,or perhaps constructed, in the wake of this demand." 4

At stake in the Cartesian Anxiety is the possibility of freedom.Freedom, of course, is contested conceptual territory. According tosome theorists, clarity and coherence demand an understanding offreedom as strictly "negative," simply the absence of coercive socialrestraint against doing, or being, or becoming as one will.1 5 Accord-ing to other theorists, it seems just as clear that only freedom in a"positive" sense - action and self-direction according to reasons, butreasons one gives to oneself - is morally significant or valuable." 6

This positive conception of liberty does not easily coexist with themoral skepticism or "decisionism" that seems to be modernity's prac-tical common sense. 117 Decisionism is the conviction that moral choiceproceeds not from publicly certifiable grounds or reasoning, but fromthe inexplicable private impulses of individuals, objectively unfoundedand rationally unguided." 8 Decisionism, which denies all connection

note iio, at I9; see Singer, supra note iii, at 342. This theme is suggested by Justice Brennan'sopinion in Goldman, xo6 S. Ct. at 1320-2i (Brennan, J., dissenting), discussed above at p. io.

113 See R. BERNSTEIN, supra note Iio, at xiv--xv, 1-3 & passim.114 Numerous works reflect the influence of civic-republican memory on contemporary moral,

political, and social theory. See, e.g., id. at i-2o, 38-49, 171-231 (discussing works of HannahArendt, Hans-Georg Gadamer, Jurgen Habermas, and Richard Rorty); A. MACINTYRE, supranote Io5; Cornell, supra note 87, at 365-8o; Frug, The City As a Legal Concept, 93 HARV. L.REV. 1057 (198o); Sunstein, supra note 72, at 30 n.7 (citing representative works attesting to ageneral, interdisciplinary republican revival); cf. Sandel, The Procedural Republic and theUnencumbered Self, 12 POL. THEORY 81 (1984) (describing the shift in American public philos-ophy from one of democratic participation and common purposes to one of fair procedures andindividual rights). For skeptical and critical commentary see Fried, Liberalism, Community andthe Objectivity of Values, 96 HARV. L. REV. 96o (1983) (reviewing M. SANDEL, LIBERALISMAND THE LIMITS OF JUSTICE (1982)); Herzog, Some Questions for Republicans, 14 POL. THEORY473 (x986); Hirsch, The Threnody of Liberalism: Constitutional Liberty and the Renewal ofCommunity, 14 POL. THEORY 423 (1986); Young, Impartiality and the Civic Public: SomeImplications of Feminist Critiques of Moral and Political Theory, 5 PRAXIS INT'L 381 (z986).

11s See, e.g., Gray, Hayek on Liberty, Rights, and Justice, 92 ETHICS 73, 74-76 (1981).116 See, e.g., 2 C. TAYLOR, Kant's Theory of Freedom, in PHILOSOPHY AND THE HuMIAN

SCIENCES: PHILOSOPHICAL PAPERS 318 (1985). The terminology of positive and negative liberty,contained in a canonical and brilliant analysis of these two conceptions, was developed by SirIsaiah Berlin. See I. BERLIN, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY 118(1969); Introduction to FOUR ESSAYS ON LIBERTY, supra, at ix. On the grounds for suspicionof positive liberty, see supra pp. 21-22; infra pp. 28-31.

117 See Cornell, supra note 87, at 300-01.118 See id.; cf. A. MACINTYRE, supra note 105, at I1-12 (using "emotivism" to describe a

like attitude). In the decisionistic view, reason is never "practical," see supra p. 23, but onlytechnical. That is, reason is employed only in the selection of means to ends or values alreadygiven, but not in the critical examination or clarification of the ends or values themselves; it is,as Hume said, "the slave of the passions." D. HUME, A TREATISE OF HUMAN NATURE 375(Dolphin ed. 1961).

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between moral choice and rational deliberation, dwells comfortablywith the doctrine of negative liberty: that freedom depends strictly onprotection of individual subjectivity against social oppression." 9 Bythe same token decisionism is hostile to the positive libertarian ideathat "ethical situation"120 - inclusion in a social process of delibera-tion about how to live - is a condition of freedom. 12 1

Another name for positive freedom is self-government. "Self-gov-ernment" suggests an internal tension of subjective and objective ele-ments. In his moral philosophy, Immanuel Kant worked the tensioninto a profound theory of freedom, starting with the idea that moti-vation by uncriticized inclination is a mode of subjection, not offreedom. 1

22

In Kantian terms we are free only insofar as we are self-governing,directing our actions in accordance with law-like reasons that weadopt for ourselves, as proper to ourselves, upon conscious, criticalreflection on our identities (or natures) and social situations. 123 Free-dom thus is compounded of both a volitional and a cognitive element,of both will and self-knowledge. One might well call this Kantianideal freedom as integrity.124 The Kantian sense of freedom has deeproots in the republican tradition.125 Kant himself was directly linkedto republicanism through Rousseau, whose work inspired him.126

119 By "freedom" (or "liberty" - I use the two words interchangeably) I will always mean

individual freedom (or liberty). By "subjectivity" I mean what is often called "individualism,"including both the conception of each self as its own discrete locus of experience and motivationand "the value of the recognition of the individual subject as a person separate from social role."Cornell, supra note 87, at 294.

120 Id. at 294.121 In psychological terms:

The price we pay for the loss of practical reason is high ....

The self of our culture internalizes the sense of... loss of freedom and disintegrationof meaning associated with life in a social milieu emptied of objective standards ....The sovereign self loses its glory. The irony of decisionism is that it easily gives way toparalysis.

The loss of shared standards robs the individual of a sense of purpose. We becomewhat we are as if by accident.

Id. at 3x2.122 See I. KANT, GROUNDWORK OF THE METAPHYSIC OF MORALS 114 (H. Paton trans.

Touchbook ed. 1984).123 For a marvelous contemporary exposition, see 2 C. TAYLOR, note 16 above.124 See infra pp. 67-68 (discussing Ronald Dworkin's theory of legal interpretation).121 See infra pp. 39-40.126 See generally E. CASSIRER, ROUSSEAU, KANT, GOETHE 1-18 (Touchbook ed. 1963)

(describing the personal and intellectual influence of Rousseau on Kant). For a discusssion ofRousseau and the republican tradition, see J. SHKLAR, MEN AND CITIZENS: A STUDY OFROUSSEAU'S SocIAL THEORY (1969).

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(b) Self-Government and Citizenship. - Citizenship is direct par-ticipation, as an equal, in the determination of common affairs. Re-publicanism holds that citizenship is for individuals an interest bothpositive and primary. Any view in which the true, primary interestsof individuals are "exogenous" or prior to politics is unrepublican.Republicanism rejects the idea that political activity is, at best, a meremeans to the advancement of those prior interests, strictly a "cost"and not a "benefit" on the ledger books of life.

Kantianism implies republicanism - self-government implies cit-izenship - to all who conceive of the human individual as in somedegree socially situated or constituted. 127 This view of the humancondition implies that self-cognition and ensuing self-legislation must,to a like extent, be socially situated; norms must be formed throughpublic dialogue and expressed as public law. 128 Normative reason, itthen seems, cannot be a solitary activity. Its exercise requires knowl-edge, including self-knowledge, obtainable only by encounter withdifferent outlooks in public argument. Thus its requisite forum is "apolitical community of equals," and its requisite temper is "a willing-ness to submit opinions to public exposure and debate." 129

127 For discussion of positive liberty as citizenship, see Frug, supra note 114, at io68-73.For negative libertarians, participation in politics simply is not a true good (except, of course,upon the sheer accident of a given person's happening to like politics as she might like fishing).It has been argued that the republican culture of participation, common good, and civic virtue,within which persons subjectively experience strong, citizenly motivation, may serve to protectnegative liberty and that this may be its best justification. See J. APPLEBY, supra note 89, atI8-i9; Skinner, The Idea of Negative Liberty: Philosophical and Historical Perspectives, inPHILOSOPi Y IN HISTORY 193 (R. Rorty, J. Schneewind & Q. Skinner eds. 1984) (ascribing thisview to Machiavelli); cf. W. NELSON, ON JUSTIFYING D)EMoCRACY (1980) (stating that democ-racy is better defended by the tendency to promote substantively just legislation than as arealization of self-government); Nelson, Huntington on Democratic Politics: A Review of Amer-ican Politics: The Promise of Disharmony, i3 PHIL. & PUB. AFF. 89, 97 n.9 (1984) (same).

128 According to one interpretation of Kant:

Being in society, under common rules, represents a common recognition of our commonsubjection to law....

... This entails not just that each of us recognize that he stands as a human beingamong humans, . . . that is... that we are under the same law. It also entails that werecognize this together, that this law is what coordinates our lives, and shapes the publiclife or our society.

Freedom for humans ... is essentially within a moral order; and this in turn isconstituted by a common recognition which is essentially brought about in a politicalorder.

2 C. TAYLOR, supra note i6, at 328-29. I should note that Taylor's is a controversial readingof Kant. Others read Kant as more radically individualistic. See, e.g., M. SANDEL, supra note114. Some might see Taylor's reading as wishfully Hegelian. See, e.g., Cornell, supra note 87,at 360-63.

129 R. BERNSTEIN, supra note I io, at 216. Bernstein here offers an interpretation of HannahArendt's views in H. ARENDT, THE HUMAN CONDITION, supra note ioi. See R. BERNSTEIN,

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(c) A Critical Difficulty: Telos vs. "Otherness." - Approached byway of Kant, freedom-through-citizenship is a juristic as well as acivic idea; it is an idea of inclusive public deliberation directed to theutterance of one law for all. Few critics deny to such a vision itsmoment of truth.' 30 Increasingly, however, critics have found thisvision wanting in resources of self-criticism and fraught with contra-diction of its own universalistic ideal. At the root of the difficulty liestelos - the notion of a predetermined human or social essence131 -universalism's seemingly unshakeable fellow-traveler.132

We have already noted how normative or practical reason pushesstrongly towards teleology, 133 and we may now consider how thatconnection is related to the idea that such reason must be public.Situated practical judgment seems always to involve a combinationof something general with something specific, endorsement of both ageneral standard and a specific application, or of both a general valueand a specific means to its effectuation. Judgment mediates betweenthe general standard and the specific case. In order to apply thestandard in the particular context before us, we must interpret thestandard. Every interpretation is a reconstruction of our sense of thestandard's nieaning and rightness. This process, in which the meaningof the rule emerges, develops, and changes in the course of applying

supra note rio, at 215-I9. The views of Arendt, seen as Bernstein sees them, and of Kant,seen as Taylor sees them appear in combination in Pitkin, supra note 103, at 345-49. Pitlindiscusses these views as follows:

As long as we live only by habit or tradition, unaware that they mask an implicit choice,there is something about ourselves as actors in the world that we are not seeing and forwhich we are not acknowledging our responsibility.

Id. at 345.Drawn into public life by personal need, fear, ambition or interest, we are there forcedto acknowledge the power of others and appeal to their standards .... We are forced tofind or create a common language of purposes and aspirations, not merely to clothe ourprivate outlook in public disguise, but to become aware ourselves of its public meaning.We are forced, as Joseph Tussman has put it, to transform "I want" into "I am entitledto," a clalm that becomes negotiable by public standards. In the process, we learn tothink about the standards themselves, about our stake in the existence of standards, ofjustice, of our community, even of our opponents and enemies in the community; so thatafterwards we are changed. Economic man becomes a citizen.

Id. at 347.I cannot fully discover who I am, learn public judgment, in exclusively private relation-ships. And I am not yet fully taking charge of my life and of what I am doing, until Ijoin with my fellow-citizens in political action.

Id. at 349.130 See, e.g., Young, supra note 114, at 381.131 See supra p. 22.132 See infra pp. 46-47.133 See supra p. 23. In classical thought, the human telos was considered to be neither

immediately accessible to contemplation nor capable of being fulfilled without intentional action.Discernment of both its content and the way toward fulfilling it was the office of practicalreason and deliberation. See Cornell, supra note 87, at 305-o6. Among moderns, as well,"ethical orientation" is sometimes said to presuppose a "substantive view" of "the unity of humannature." Id. at 293, 296.

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it to cases is one that every common law practitioner will immediatelyrecognize. 134

A normative proposition is general or law-like - is a standardinsofar as it abstracts from the wealth of detail found in live socialcontexts, picking out a few features of a case or situation as norma-tively significant. A mature normative or legal "system" is composedof many such standards, each abstracting on its own perceptual axis,focusing on its own "key" categories of facts. To apply the body ofstandards persuasively to any given case means to perceive or "shapeup" the case - to organize it and pick out from the fullness of itslive detail its normatively significant features - in a way that matchesor appeals to the sensibilities of the audience or the community. Themode of thinking involved is empathic. It calls for "enlarged mental-ity," always implicitly testing itself against the views of others.'135

Although practical reason, as thus described, is said to be "not afaculty of Man in his universality, but of human individuals in theirparticularity and plurality,"'1 36 it does also evidently depend upon whatRobert Cover called the community's "nomos" or "normative universe"- its "commonalities of meaning that make continued normativeactivity possible."'1 37 Without some such assumption, the processseems incomprehensible. Yet unless we can keep nomos from lapsinginto telos - the predetermination of human purpose or social role -

the process will seem, to many, unacceptable.To many modern critics, history's lesson is that institutional ex-

pressions or invocations of a telic human nature have, in practice,been disunifying - exclusionary, hierarchical, and selectively oppres-sive. This dismaying lesson applies to even the seemingly most rarifiedand abstract notions of human essence. (Or perhaps the lesson is thatno telic ideal is "rarified" and "abstract" when regarded from a criticalstandpoint other that its own.) 138 This holds even for the Enlight-

134 See R. BERNSTEIN, supra note 11O, at 54, 147-48; Michelman, Justification and Justi-

fiability of Law in a Contradictory World, in NOMOS XVIII: JUSTIFICATION 71, 72-73, 85-86(J. Pennock & J. Chapman ed 1986); Van Meter, Adjudication as a Normative Activity 81-87(unpublished draft on file with the author).

135 See id. at 217-18 (interpreting Arendt). "[P]ersuasion is only possible when argumenttaps into the listener's experience of the world." Singer, supra note iii, at 344.

136 Id. at 219.137 Cover, supra note i, at 4, 14; see R. BERNSTEIN, supra note izo, at 157 (discussing the

views of Hans-Georg Gadamer) ("Given a community in which there is a living shared acceptanceof ethical principles and norms, then [practical reason] as the mediation of such universals inparticular situations makes good sense.").

138 The lesson is exemplified by the classical polis from which the entire civic-republicantradition has sprung. By one interpretation, the human telos in classical civic vision is theapplication of reason to the quest for an answer to the question of the good. See L. STRAUSS,THE CITY AND MAN (1964); cf. A. MACINTYRE, supra note 1o5, at 203-05 (proposing that"[t]he good life for man is the life spent in seeking for the good life for man"). The quest maybe the "true" or highest vocation, but it is not the only aspect or form of life. Telos cannotdeny bios. As there are needs of the flesh, those needs too must have their ministers and

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enment, or Kantian, conception of human nature - conceived, as itwas, with the very aim of lifting the oppressions and injustices ofsocially ascribed and differentiated roles.13 9

The Kantian telos, as generally understood, envisions a humansubject whose essence is that it is prior to all social situation andcontext. That essence is pure, unconditioned - but somehow stillrational and reasonable - self-direction. The corresponding publicnormative stance is that of impartiality. The corresponding institu-tional form is that of the law universal, its universality manifest inthe generality of its formulas, ideally abstracted from all divisivecontingencies of actual social life.140

Kantianism in that form implies the expulsion of materialitythat is, "desire, sentiment, and the particularity of needs and interests"- from an honored public to an excluded private realm. 14 1 Thisexpulsion, however, is not itself universalist or inclusive, but partialand exclusive. The legal stance of impartiality, of looking past theconcrete parties, with their concrete needs, to some adequately neutralprinciple implicated by their case 142 - the stance, as we may describeit, of denying the decider's direct responsibility to the parties for thelegal result - has been illuminatingly analyzed as ideologically"male.""4 3 But to call it gendered and partial in that respect is only

votaries. Agora, the public space of equality of rule in which politics occurs, implies oikos, theprivate space of mastership in which the citizen's material needs are met and his experience ofpersonal self-rule is confirmed, by others excluded from citizenship. See, e.g., J. POCOCK, THE

MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLI-

CAN TRADITION 68, 390-91, 450 (1975) [hereinafter MACHIAVELLIAN MOMENT]. The privatespace of desire and material need is quarantined from the public space of reason and virtue.

"[W]omen must be excluded from the public realm of citizenship because they are the caretakers

of affectivity, desire and the body. Allowing appeals to desires and bodily needs to move publicdebates would undermine public deliberation by fragmenting its unity." Young, supra note 114,

at 389. Thus even the "social question" - that of democratizing the polity by distributing

material resources needed for citizenship - must be kept from the agenda. Such, at any rate,was Arendt's interpretation. See H. ARENDT, supra note 97, at 14-15; H. ARENDT, THEHuMAN CONDITION, supra note 1o. But see R. BERNSTEIN, Rethinking the Social and thePolitical, in PHILOSOPHICAL PROFILES 238 (x986) (criticizing Arendt's interpretation); Pitkin,supra note 1o3, at 338-43 (same). Thus the classical telos turns out to be plural and graded.

It makes room - discrete, discreet, and degraded - for lower human natures: namely, those

of women and slaves. The tradition, it is said, persists to this day. See generally Olsen, TheFamily and the Market: A Study of Ideology and Legal Reform, 96 HARv. L. REV. 1497 (1983).

139 See Cornell, supra note 87, at 311-14.

140 See Sandel, supra note 114, at 83-87, 93-94; supra pp. 13-14 (discussing Justice Stevens'

opinion in Goldman).141 Young, supra note T14, at 387.

142 See Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARv. L. REV. I

(1959).143 See, e.g., C. MAcKINNON, Desire and Power, supra note 41; MacKinnon, Feminism,

Marxism, Method and the State: Toward Feminist Jurisprudence, 8 SIGNS 635, 638 (1983);

Scales, The Emergence of Feminist Jurisprudence: An Essay, 95 YALE L.J. 1373, 1376-8o(1986).

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to indicate, and not to describe exhaustively, the discriminatory po-tential of determinedly abstract law. Goldman v. Weinberger144 sug-gests the rest. So too does Plessy v. Ferguson:x45 only in sedulousabstraction from concrete experience could "separate" have seemed"equal." 146

(d) Reconciliation. - The positive or ethical notion of freedomrequires both that one have reasons for actions and that the reasonsbe one's own.147 It thus makes conflicting demands on the relationsof individuals with communities: on the one hand, positive freedomimplies a social process of normative deliberation, based in common-ality;148 on the other, it rejects all predeterminations of human essenceand social role.149 Much of contemporary social theory seems tosearch for reconciliation between these two demands of ethicalsituation 50 and free subjectivity.' 5 ' The work proceeds along varioustracks, none of them leading to clear and final results.

One important branch of this work focuses on the proceduralconditions of undominated normative conversation. It aims to specifyforms of "communicative action" that are oriented toward producingmutual or shared understanding among the discussants.15 2 The em-phasis is on open and critical interchange on questions of value,capable of producing agreement without resort to an overarchingsocial context of axiomatic belief. Behind this approach is an implicit,perhaps optimistic, postulate of something very like a human essence:that is, people's capacity for reasonableness, suggesting the possibilityof reaching agreement through mutual dialogue and discourse.' 5 3

Other work takes a less regulative, more "pragmatic" approach tothis problem of reaching normative agreement, uncoerced by eithersocial power or unexaminable, foundational belief. Pragmatism looksto shared experience to produce intermediate premises, which althoughlocal, provisional, and relative to situation, may be normatively suf-ficient for the occasion. Pragmatism is congenial with the understand-

144 Io6 S. Ct. 1310 (1986); see supra p. io (discussing Justice Brennan's opinion in Goldman).145 163 U.S. 537 (1896).146 It is a matter worth pondering that Brown v. Board of Educ., 347 U.S. 483 (1954), a

decision that has come to stand for the supremely universalistic principle of constitutional "color-blindness," see Plessy v. Ferguson, 163 U.S. at 552, 559 (Harlan, J., dissenting), is also asupreme example of deciding with an eye to context.

147 See supra p. 26.148 See supra p. 27.149 See supra pp. 28-30.150 See Cornell, supra note 87, at 293-94.1s1 See supra note 119 and accompanying text.152 See R. BERNSTEIN, supra note iio, at 185-97 (describing and appraising the work of

Jurgen Habermas).153 See id. at 192, 195 (describing a telos in our communicative action that is "'a gentle but

obstinate, a never silent although seldom redeemed claim to reason'" (quoting Habermas)).

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ing of practical reason as "mediating" between general principles andparticular problematic situations. 154 It suggests that our pasts -understood not as closed traditions but as experiences that orient or"shape" our current situations and directions of change 5 5 - mayprovide the resources of self-recognition, necessary for normative guid-ance and validation.' 5 6 Closely related is the idea of what might becalled trajectoral self-definition (of individuals and communities)through narration - that is, through integrative reconstruction ofpersonal or social pasts as "stories" that define ethical identities (orcharacters) "thick" enough to guide current choice. '7

Another approach, in a more abstract philosophical mode, searchesfor normative common ground in the idea of the "intersubjective"constitution of individual selves.' 5 8 According to this approach, thecommon ground can be located in an understanding of every personas thoroughly conditioned by a shared social context that helps con-stitute that person's identity. This social context consists not only ofnetworks of personal relationship but also, more fundamentally, oflanguage, culture, and their influence on how we perceive the world.The relationship between the individual and the community in thisconception is dialectical. Neither term is comprehensible without theother: the community is a community of individuals, whose ownidentities are inseparable from their social involvements.

This interdependence of individual and society is said to leadindividuals to recognize their common ground with others by showingthem how they are both different from and the same as others. In astrongly emergent feminist theme, the suggestion is that awareness ofinterdependence invites recognition of how our sameness is our dif-ference. The human universal becomes difference itself. Differenceis what we most fundamentally have in common. Moreover, differ-ence is a relationship between or among persons. It is not in anyparticular person or class of persons as a deficiency or shortfall fromsome standard way of being.' 5 9

The hope for this kind of mutual recognition is that it makespossible normative interchange that is, at the same time, (i) mutually

1s4 See id. at 54; supra pp. 28-29.155 See R. BERNSTEIN, supra note iio, at 130, 167, 204.156 See id. at 197-2o6 (discussing the work of Richard Rorty); id. at 165-69 (discussing the

work of Hans-Georg Gadamer); R. RORTY, Pragmatism, Relativism, and Irrationalism, inCONSEQUENCES OF PRAGMATISM 16o, 165-66 (1982).

157 See infra pp. 64, 68-69.158 See Cornell, supra note 87, at 360-68.159 See id. at 368-69; Minow, supra note 41, at 206. For illustration and discussion of how

this mode of analysis may affect legal argument, see C. MACKINNON, Difference and Dominance:On Sex Discrimination, in FEMINISM UNMODIFIED, supra note 4I; C. MACKINNON, SEXUAL

HARASSMENT OF WORKING WOMEN 101-41 (1979); Olsen, Statutory Rape: A Feminist Critiqueof Rights Analysis, 63 TEX. L. Rxv. 387, 397-401 (1984).

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intelligible, (ii) potentially critical of any participant normative vision,and (iii) free of a priori privileged status for any vision. Difference,then, becomes what we have in common, the sought-for commonground that enables us to contribute to one another's freedom. Werecognize, reflect, define, enlighten, and transform one another as weourselves are reciprocally recognized, reflected, defined, enlightened,and transformed.

Binding together the various reconciliatory projects are certaincharacteristic themes. There are themes of dialogue: conversation,inclusion, and recognition; themes of history: narration and contin-uation; themes of responsibility: contextuality and immediacy; andthemes of identity: shared humanity (including difference) and com-mon good (including confrontation with difference).

The dialogic themes express the vision of social normative choiceas participatory, exploratory, and persuasive, rather than specialized,deductive, or demonstrative. They emphasize openness to "otherness"as a way toward recognition not only of the other, but also of oneself.

The historical themes express the sense that the conversation nei-ther begins nor ends now. We have individual pasts and a collectivepast, and those pasts raise for us issues of identity and integrity. 160

At the same time we have, we hope, our individual and collectivefutures, and our conversation now ought not to foreclose future con-versations.

The responsibility themes express demands for both clear-sight-edness and personal engagement. They warn against the comforts oflegal abstraction, hiding or overlooking actualities of social disadvan-tage. 161 They protest against projection of the agency of decision ontoa distant force - such as law or state - when the truth is that theirdistance is what we make it by our deference. 162

The identity themes reflect the tug between the demands for bothethical situation and personal "space" as dual conditions of freedom.They also point most obviously towards the irresolvable tension be-tween generality and particularity that pervades the reconciliatoryenterprise as a whole.

Together, these themes compose a loose unity of their own. Theycharacterize a modern project of ethical reconciliation through dia-logue, in search of freedom. 163 Happily for us, their conjunction isstrikingly exemplified in Justice O'Connor's dissenting opinion in Gold-man v. Weinberger. Indeed, regarding this opinion as a piece of

160 See infra pp. 68-69.161 See supra p. io (discussing Justice Brennan's opinion in Goldman).162 See supra note 61 and accompanying text.163 Depending on perspective, the opposites undergoing "reconciliation" are subjectivity and

normativity (or "ethical situation," see supra p. 26), self and other, individual and society, orparticularity and generality.

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reconciliatory dialogue helps reveal its unity, by explaining what mayotherwise seem a puzzlingly disunifying feature of it: namely, its mixedmessage regarding the desirability of a decisive legal "test or standard"for cases of the type into which Goldman's falls. ' 64

Justice O'Connor is especially insistent that the Court formulate ageneral doctrinal test for cases, like Goldman's, of "Free Exerciseclaims in the military context," 165 and she provides one. Hers, how-ever, is a "balancing" test, applicable only by contestable evaluationsof the concrete interests at stake in particular cases. The test lacksdecisive "objectivity," in Justice Stevens' sense.1 6 6 Although JusticeO'Connor's application of the test in Goldman's case may reach a littlebeyond that case - perhaps to all cases of requests to wear yarmulkesin peripheral duty stations1 67 - she certainly has not decided anythingmuch beyond. Her testing categories - "unusually important inter-est," "substantial harm" - are so open to contextual appraisal that adecision here and now for Goldman leaves her uncommitted on thecases of dreadlocks and turbans that so trouble some of her brethren.As far as we can read, she expends no present worry on whether orhow considerations of "image" or "polish" will bear on future cases.One case at a time.

Adoption of the balancing standard is, all the same, a significantact of commitment on Justice O'Connor's part. Its formula commitsher, in the first place, to the Court's and the country's project ofresolving normative disputes by conversation, a communicative prac-tice of open and intelligible reason-giving, as opposed to self-justifyingimpulse and ipse dixit. The test's open categories invite the expressionand examination of doubts and disagreements, not just about formu-lation of a standard for cases like this, but about this case and howits resolution will, given the context, affect the meanings of the wholecomplex of governing standards. The balancing test, with its contex-tual focus, solicits future conversation, by allowing for resolution ofthis case without predetermining so many others that one "side" ex-periences large-scale victory or defeat. Justice O'Connor's use of suchbalancing displays both its reconciliatory spirit and its dialogic force:she can acknowledge as "unquestionably" real and legitimate the majorinterests asserted by the losing party, 168 while enforcing on that partya standard of dialogic good faith. 169

164 Goldman, io6 S. Ct. at 1324 (O'Connor, J., dissenting).165 Id.166 See supra p. 9. In fancier terminology, it is not very formally realizable. See Kennedy,

supra note 2o, at 351.167 Her focus is on "an exemption of the type requested by the individual" in the instant

case. Goldman, io6 S. Ct. at 1325-26 (O'Connor, J., dissenting).16s Id. at 1325 (noting that "[t]he need for military discipline and esprit de corps is unques-

tionably an especially important governmental interest").169 See id. at 1326 (noting that the Air Force contradicts its own claim of "need for absolute

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The balancing test commits Justice O'Connor, in the second place,both to the parties and to practical reason. It does so by affirmingrather than denying her responsibility - in company with her col-leagues - for the decision of the parties' case. It makes the Justiceconfront the parties in the flesh, so to speak. 170 It denies her therefuge of objective determinacy lodged in some force other than her-self.

Justice O'Connor's particular choice of a test commits her, in thethird place, to a particular version of national normative history and,through it, of national normative identity. As narrator resuming inmedias res a story of many threads - "this Court's precedents"'17 1 -it is she who decides which threads to pick up, where, in whatcombination. The subplot she chooses is that of the social conflict ofreligion and regulation. To see the commitment in that choice, oneneed only compare it with Justice Rehnquist's for the Court. Hissubplot - no less fairly available than hers in the history - is thatof separation of powers, of the articulation of government into agen-cies related by status. These narrative choices express world views:in her subplot, the setting is society, the protagonists are troubledpersons, and the agon is social difference. 172 In his, the setting is thestate, the protagonists are abstract authorities, and the agon is insti-tutional deference. The choice of subplots also, of course, affects thetenor of today's decision, with implications for tomorrow's: JusticeRehnquist's subplot draws Goldman's claimed personal need into thegeneral category of individual interests owing special deference to thesocial role of soldierhood. Justice O'Connor's subplot draws the mil-itary's claimed institutional need into the general category of govern-ment interests owing special respect to personal acts of religious ob-servance. The result is not only that Justice O'Connor decides forGoldman while Justice Rehnquist decides for the Air Force. It is,more strikingly, that she, alone among the Justices, unambiguously

uniformity" by stating in its dress code that "each member has the right, within limits, to expressindividuality through .. . appearance").

170 Here, for example, the balancing test leads the Justice to give weight to the evident

personal sincerity of Simcha Goldman, the individual. The test leads the Justice to search outthat fact's normative significance, not just notice it only to set it aside or generalize it away.Compare Goldman, io6 S. Ct. at 1324 (O'Connor, J., dissenting) (agreeing with Justice Brennan'scriticism of the majority for disregarding the "sincere and serious nature" of Goldman's claim),with id. at 1314-15 (Stevens, J., concurring) (noting that Goldman's case is "especially attrac-tive," in part because of his evident "devotion to his faith," but going on to say that the dressrule should be tested as it would, presumably, apply to any Air Force member who held "sincerereligious beliefs" in conflict with the rule).

171 Id. at 1325 (O'Connor, J., dissenting).172 A drama's "agon" is its central field or argument of struggle. The Greek word literally

describes an assemblage of people at a field of contest, perhaps initially and primarily an athleticfield or race course. See, e.g., I OXFORD ENGLISH DICTIONARY 187 (1983); WEBSTER'S NEwINTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 51 (2d ed. unabridged 1948).

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affirms the past practice of strict scrutiny of governmental impositionson freedom of religious observance, with all that that affirmationimplies about priorities of personhood and statehood, and freedomand authority. 173 The dialogic attitude has produced the strongestjudgment in the case.

The tone of Justice O'Connor's opinion is as dialogic as its method.Its implicit setting and sense are those of an equal speaking amongseveral, not of solitary, self-contained pronouncement. It directly ad-dresses each of the other four judicial speakers in the case, callingeach by name, the only one of the five opinions to do so. 174 It speaksin the voice of colloquy, not authority; of persuasion, not self-justifi-cation. Altogether, the opinion seems a model of judicial reconcilia-tory dialogue.

B. Recovery: The Deep Tradition

In the version I am about to offer, the civic republican traditionis deeply - though far from perfectly - reconciliatory. 175 I presentthe tradition as participatory, conversational, inclusory, reasonable,and strongly committed to immediacy. Yet it also has elements ofteleology, objectivism, and abstraction that seem finally incompatiblewith the modern dialogic attitude I have been trying to describe. Thetradition's flawed exemplification of dialogic possibility may, I suggest,help explain both its current resurgence in political discourse and thesuspicion with which that resurgence is met.

I distinguish a "deep" from a "proximate" republican tradition inAnglo-American political thought. The deep tradition culminates inthe seventeenth-century writings of James Harrington. It has at itsheart a positive-libertarian ideal of individual self-government throughpolitics. The proximate tradition - what it is proximate to is us, inthe persons of the American revolutionaries and constitutional framers

173 At one point in his opinion, Justice Brennan states his view that strict scrutiny is in orderand that "any special needs of the military can be accommodated by the compelling interestprong of the test." Goldman, io6 S. Ct. at 1317-18 n.2. At another point he states that it isnot the Court's province to second-guess professional military judgments but rather "to assureourselves that there exists a rational foundation for assertions of military necessity when theyinterfere with the free exercise of religion." Id. at 1321.

174 See id. at 1324 (O'Connor, J., dissenting). Justice O'Connor, following convention, refersto the author of the majority opinion as "the Court" rather than "Justice Rehnquist." Id. JusticeBlackmun's opinion refers to all the others in effect, though not to all of them by name. He isthe only one of the other four opinion writers to take any cognizance of Justice O'Connor'sopinion. See id. at 1322 (Blackmun, J., dissenting).

17s 1 am not an historian by trade, and I do not offer this Foreword as historical research.My "version" is largely an interpretation of the profound and extensive writings of one eminenthistorian of the republican tradition, J.G.A. Pocock, leavened by some reading of James Har-rington. At least one distinguished historian of political thought sees matters differently. SeeSkinner, supra note 127.

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- is republican ideology seemingly redirected over the century fol-lowing Harrington to negative-libertarian aims, perhaps mixed withpersisting positive-libertarian ones. 176 This divided account may helpexplain how, say, Cass Sunstein, 177 Joyce Appleby, 178 and DrucillaCornell' 7 9 can be seeing such different things in the republican tra-dition. It also suggests how self-government comes to be an aptcounter-vision for American constitutional law, a theme both presentand buried in American constitutional thought.

i. Civic Humanism. - (a) Universality and Existence. - Wehave seen that the linkage of citizenship with freedom has classicalantecedents.' 80 We have also seen that in classical thought whatostensibly linked the two was an idea of the human telos no longerreadily acceptable. 181

A relatively nonteleological republicanism appears in history as anaspect of Italian Renaissance humanism.' 8 2 Humanism was, for itstime, an antiteleological movement. It stood for human self-relianceand self-reference in the ordering of life and experience. Such orderingwas to be pursued without resort to the transcendent comforts ofcosmic necessity or divine plan.' 8 3 Yet humanism arose within apredecessor consciousness, medievally attached to essential naturesand fixed orders - a consciousness in which the real and intelligiblewere equated with the universal and constant, and particularity andchange spelled incoherence and illusion.' 8 4 In medieval terms, toknow the world and oneself in it as real meant to see oneself aspartaking in what is universal and timeless. In humanistic terms,participation in the universal could not mean taking one's preordainedpart or place in any transcendent order, whether Great Chain of Beingor eschatological drama of salvation.' 85

176 For explanation of the concepts of negative and positive liberty, see supra pp. 25-26.177 See supra pp. 18-i9.178 See supra p. 20 & note 89.179 See supra p. 26.180 See supra p. 22.181 See supra notes 104-105 and accompanying text.12 Teleology is not, however, absent from this conception. See infra pp. 46-47.183 See J. PococK, MACHIAVELLIAN MOMENT, supra note 138, at 62-63. The text describes

one strain of humanism, typified by Pico Della Afirandola, see id. at 98-99, and of course,Machiavelli. See Pocock, Historical Introduction, in J. HARRINGTON, POLITICAL WoRKs, supranote 2, at I, I.

184 See J. POCOCK, MACHIAVELLIAN MOMENT, sura note 138, at 3-48; J. POCOCK, CivicHumanism and Its Role In Anglo-American Thought, in POLITICS, LANGUAGE AND TIME:ESSAYS ON POLITICAL THOUGHT AND HISTORY 80, 81-85 (1973) [hereinafter Civic Humanism].

185 "Government could not be seen [by humanists] . . . as a direct emanation of the divineorder of the universe; it was simply ... an incident in the human mind's unaided struggle withits own self-generated disorder." Pocock, Historical Introduction to J. HARRINGTON, POLITICALWORKS, supra note 2, at 20. "[The republic] was by definition that political form which aimedat self-sufficiency, at achieving perfection by means of its own unaided resources." Id. at 17.

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The humanist "moment" in politics thus is one of copresent de-mands for objectivity and subjectivity, self-knowledge and self-crea-tion, cognition and volition. It requires a humanly created order ofactive and diverse human individuals, but an order intelligible asuniversal and self-maintaining in a surrounding world of instabilityand chaos.

(b) Self-Government, Common Good, and Civic Virtue. - Whatoccurred, or so we are advised, was a revival of the Aristotelian ideaof the polis, or republic, as an embodiment of the universal. Itsuniversality lay in its exemplification of "human association as such,in which all types of men combined to pursue all human goods, theirnature being such that they could be pursued only in association." 186

What made citizenship the highest form of activity was that the citizenpartook of the republic's universality: "having entered the politicalprocess in pursuit of his particular good, [the citizen] now foundhimself joining with others to direct the actions of all in pursuit ofthe good of all; the attainment of his private good was not lost butmust take a lower priority."18 7

In sum, humanists found in the classical civic tradition the "meansof asserting that the republic was a partnership of all men aimed atthe realization of all values. If it was this it was a universal entity.... "188 Deeply embedded in this conception are the elements ofgeneral good (as the universal object of reason) and civic virtue (asself-direction according to that object of reason), which have come toseem definitional for the classical republican outlook. These elements,however, appear at this stage not as ultimate values but as inferencesfrom a certain conception of an ethically and cognitively adequate lifefor the individual, or as conditions of such a life.

The conception is associational and conversational. The universalis conceived as "immanent in participation in the web of life andlanguage, and so the highest values... [seem] attainable only throughconversation and ... association." 18 9 "Morality was inherent in manand human laws the result of his knowledge of his own nature....[T]he political community was the necessary setting for such self-knowledge and the laws that were its issue ..... 190 Thus the re-public and its process of lawmaking provide "social reinforcement" for"personal integrity" in an otherwise chaotic world. 191

In its structure of cognitive, conversational, and volitional ele-ments, the civic humanist conception of the good life bears at least a

186 J. POCOCK, Civic Humanism, supra note 884, at 86.187 Id.

188 J. POCOCK, MACHIAVELLIAN MOMENT, supra note 138, at 66.189 Id. at 64; see id. at 63.190 Id. at 65.191 Id. at 366. Compare this with the modern search for "ethical situation" as the alternative

to "decisionism." See supra pp. 25-26.

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family resemblance to the modern idea of freedom as self-governmentthrough politics. 19 2 The resemblance becomes unmistakable in theseventeenth-century republican restatement by James Harrington.

Harrington, writing political theory during the English interreg-num, is a pivotal figure in the history of the "Atlantic" branch ofrepublicanism that would find its way to America. 193 Through hiswritings the classical tradition entered the canon of English politicalthought. Moreover, those writings set the conceptual and rhetoricalterms for an ensuing political discourse, the so-called "Opposition"ideology that arose in England and passed to America during theyears preceding the American Revolution.1 94

Harrington wrote in his own moment of crisis: civil war andinterregnum. The question of legitimate and effective authority inEngland stood urgent and contested. 195 In good humanist style, Har-rington rejected those answers of his time that invoked transcendentnecessity. 196 The moment, for Harrington, was not one "of nature,"at which to discover the compulsive physics of social order. 197 It was,rather, one of action and choice by the individual "searching for hisown essence and seeking to define his own existence."' 98 What wasnow chosen ought, in the Harringtonian view, to sustain rather thanforeclose the political conditions of self-defining action.199 The regimethat does that is the republic.

Harrington's argument was this: a person's mind is the field ofboth reason and passion. When passion rules "in contemplation," theresultant "action" is "vice and ... bondage"; whereas "whatever wasreason in . . . contemplation . . . , being brought forth by [the] willinto action, is virtue and freedom. ' 200 We know by now how theargument will move to politics as the theater of individual freedom: 20'

192 See supra pp. 26-27.193 The name "Atlantic," for the republican tradition that bridges Britain and America, seems

to be Pocock's. See J. POCOCK, MACHIAVELLIAN MOMENT, supra note 138.194 See infra pp. 47-50.195 See J. POCOCK, MACHIAVELLIAN MOMENT, supra note 138, at 378. Political concerns

about external order reflected, or converged with, religious concerns about personal integrityand self-control. See, e.g., M. WALZER, THE REVOLUTION OF THE SAINTS: A STUDY IN THE

ORIGINS OF RADICAL POLITICS 9-19, 301-03, 307-6 (1965).196 Such answers notably included the statist argument of Thomas Hobbes, which began

with a'xioms of human nature (appetitive, self-aggrandizing, and vulnerable) and moved to therational necessity of total collective submission to external sovereign authority. See, e.g., T.HOBBES, LEVIATHAN chs. 13-x8 (1651).

197 See Pocock, Historical Introduction, in J. HARRINGTON, POLITICAL WORKS, supra note

2, at 31-32.198 Id. at 30.199 See J. POCOCK, Authority and Property: The Question of Liberal Origins, in VIRTUE,

COMMERCE AND HISTORY 51, 55-56 (1985).20

0 J. HARRINGTON, The Commonwealth of Oceana, in POLITICAL WORKS, supra note 2, at169.

201 See Pocock, Historical Introduction to J. HARRINGTON, POLITICAL WORKS, supra note

2, at 64-65.

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one object of a self-directive reason must be law in the social sense,held in common with others like ourselves with whom we coexistsocially. Through participation in "the debate of [the] common-wealth," 20 2 in joint pursuit of common interest and right, the individ-ual gains both an object for self-directive reason and the dialogicsupport required for its exercise in the process of self-government. 203

Corresponding to the individual's "reason in ... contemplation"is "reason in the debate of a commonwealth." 20 4 As the active issueof reason is the individual's freedom, it is the commonwealth's law.205

Hence the commonwealth - the true government - "is an empire oflaws and not of men." 20 6

In Harrington's republican construction of freedom through poli-tics, the objective principle and element of cognition is a presupposed"common right, law of nature, or interest of the whole which is moreexcellent, and so acknowledged to be by the agents themselves, thanthe right or interest of the parts only.' 20 7 The idea of a cognizablecommon good is thus a first objectivist moment in the classical re-publican theory of self-government. 20 8 Again, however, this idea,while crucial within the whole republican conception, is not its un-derlying concern; self-government is, and objective common good ap-pears as a condition of self-government's possibility.

(c) Independence and Corruption. - Republican deliberation,"reason in the debate of a commonwealth," is dialogic - an engage-ment of political equals who, whatever their possible diversity ofsituation, interest, or normative outlook, are united in their commit-ment to good faith pursuit of their common good and in their relianceupon each other's like commitments. "Corruption" breaks the spell.Corruption is the subversion, within the political motivation of anyparticipant, of the general good by particular interest. By extension,corruption is also a participant's material dependence upon another'swill - "the dependence of some .. .upon [others] when they shouldbe depending upon all and upon themselves." 20 9

In Harrington's thought, the doctrine of citizen independence tookthe specific form of linkage between franchise and freehold (or, more

202 J. HARRINGTON, The Commonwealth of Oceana, in POLITICAL WORKS, supra note 2, at

170.203 See id. at 171-72.204 Id. at 170.

20s See id.206 Id. (crediting Aristotle and Livy).207 Id. at 171.

208 We are going to keep count. See infra pp. 43, 47.209 J. POCOCK, Civic Humanism, supra note 184, at 87-89; see, e.g., J. PococK, Machiavelli,

Harrington and English Political Ideologies in the Eighteenth Century, in POLITICS, LANGUAGE

AND TIME: ESSAYS ON POLITICAL THOUGHT AND HISTORY 131-32 (1973).

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accurately, secure and stable private wealth which freehold epito-mized).210 This linkage is one major source of the attribution of elitistand aristocratic tendencies to classical republicanism. 21 But the tra-dition's deeper tendency is the opposite - inclusive and democratic,not exclusive and plutocratic. Inclusion - diversity in universality- is what gives the republic its special status as "a paradigm ofhuman association ... in which all types of men combine[ ] to pursueall human goods."2 12 The universalistic conception requires a "distri-bution of authority such that every citizen's moral nature [is] fulfilled."Without such a distribution, "the republic would not be universal,just, (or) stable. '"213 Ideally, therefore, the task of the framers of therepublic is to distribute as widely as possible the secure material basesrequisite for independent citizenship. 214

(d) Sovereignty and Immediacy: Law's Empire. - Harrington'sdescription of the true commonwealth as an empire of laws and notof men 215 has, with slight emendation, become a fixture in the Amer-ican constitutional creed.216 But Harrington meant by his phrasesomething rather different from what we mean by ours.217 His andours have in common both the rejection of government by unmediated

210 See J. POCOCK, Civic Humanism, supra note 184, at 91.211 See supra p. 20.212 J. POCOCK, Civic Humanism, supra note x84, at 86.213 J. POCOCK, MACHIAVELLIAN MOMENT, supra note 138, at 66.

214 See Pocock, Historical Introduction, in J. HARRINGTON, POLITICAL WORKS, supra note

2, at 61-62. Harrington apparently sought to achieve this wide distribution through the agrarianlaw he envisioned for Oceana. (Oceana is Harrington's utopian England). An agrarian law isa redistributive inheritance law applicable to landed estates. See J. HARRINGTON, The Com-monwealth of Oceana, in POLITICAL WORKS, supra note 2, at 231. Pocock suggests thatHarrington would have been receptive to the possibility that nonlanded, commercial, mercantileand artisan property holdings might suffice, despite their apparently evanescent and sociallydependent character (by comparison with heritable land). See J. POCOCK, Civic Humanism,supra note 184, at 91-92; Pocock, Machiavelli, Harrington and English Political Ideologies inthe Eighteenth Century, in POLITICS, LANGUAGE AND TIME, supra note 184, at 112-13.

To be sure, there were limits - from our vantage point intolerable ones - on how far aseventeenth-century republican could go towards total political inclusion. Some people seemedto have no property or to have voluntarily entered into total economic dependence upon others.Alms-takers, pensioners, and propertyless servants living in their masters' houses met thisdescription. See J. HARRINGTON, A System of Politics, in POLITICAL WORKS, supra note 2, at

834; J. HARRINGTON, The Prerogative of Popular Government, in POLITICAL WORKS, supranote 2, at 430; J. POCOCK, MACHIAVELLIAN MOMENT, supra note 138, at 390. But there is no

reason to think that Harrington would not have pursued, say, welfare-state "new property" ideashad those been available to his imagination. See Reich, The New Property, 73 YALE L.J. 733(1964). This is not to say he would have found no serious conceptual or practical difficulties insuch an approach. See Simon, Rights and Redistribution in the Welfare System, 38 STAN. L.REV. 1431, 1486-1504 (1986).

215 See supra p. 40.216 See supra note 2 and accompanying text.217 See supra p. 17.

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passion or arbitrary will and the demand that government be directedto the interests of the governed, not those of the governors. 218 There,however, the two concepts seem to part company. Where we invokethe ideal of a politically transcendent law, not only neutral but also"objective"219 - the rule of law, in a roughly equivalent litany -Harrington invokes "reason in the debate of a commonwealth"220 ; bywhich we are, I believe, to understand an inclusive, participatory,dialogic search for the reconciliation of difference in a universallyaccepted common good. 221

Thus, the essence of Harringtonian politics is immediacy. Quitesimply, self-government is the business of the self, not to be displacedonto any distanced force, whether personal sovereign or impersonallaw. Republican citizens "do not reduce self-government to self-pre-servation, and then transfer the power it defines to a sovereign rep-resentative." 222 After all, the justification of the republic is freedom,to be found in the process of self-government - not the freedom ofrulers as a class apart (and certainly not that of the Laws) but thefreedom of each person as ruling and being ruled.2 2 3

The question of legal rights standing above or beyond politics is,accordingly, one that gives Harringtonian theory much trouble.22 4 On

218 See, e.g., J. APPLEBY, supra note 89, at I6; J. HARRINGTON, The Prerogative of Popular

Government, in POLITICAL WORKS, supra note 2, at 401.219 See supra pp. 9-1o, 13-14 (discussing the opinion of Justice Stevens in Goldman).220 See J. HARRINGTON, The Commonwealth of Oceana, in POLITICAL WORKS, supra note

2, at 170.221 Elsewhere Harrington says that as law proceeds from will, and the mover of will is

interest, the "empire of laws and not of men" is "[the interest] of the whole people, coming upto the public interest (which is none other than common right and justice, excluding all partialityand private interest)." J. HARRINGTON, The Prerogative of Popular Government, in POLITICALWORKS, supra note 2, at 401. Subjective and objective aspects of self-government are herelocked in tight embrace.

222 Pocock, Historical Introduction, in POLITICAL WORKS, supra note 2, at 32.223 The phrase "ruling and being ruled" is Pocock's. See, e.g., Pocock, supra note 69, at

358. Republicanism is an unabashedly process-centered - indeed a thoroughly and irredeemably"process-based" - theory. See L. TRIBE, CONSTITUTIONAL CHOICES ch. 2 (r985); Tribe, ThePuzzling Persistence of Process-Based Constitutional Theories, 89 YALE L.J. io63 (i98o). Thisdoes not make republicanism's persistence puzzling. Its persistence is explained by its underlyingaim of freedom. Freedom is not, however, a "substantive" justification for republican processif a justifying "substance" must stand outside the process it justifies. Freedom-as-self-governmentignores the categorical distinction between substance and process. See L. TRIBE, supra, at 13;Cornell, supra note 87, at 376-78.

224 In its antagonism towards "alienated" forms of authority and rule, Harringtonian repub-licanism plainly prefigures the Marxist critique of abstract legal rights, see K. MARX, On theJewish Question, in EARLY WRITINGS 211 (R. Livingstone & G. Benton trans. 1975), and asuccessor literature of our own day, see, e.g., Gabel & Harris, Building Power and BreakingImages: Critical Theory and the Practice of Law, ii N.Y.U. REv. L. & SOC. CHANGE 369,375-76 (1982-83); Klare, Labor Law as Ideology: Towards a New Historiography of CollectiveBargaining Law, 4 INDUS. REL. L.J. 450, 469, 478-79 (1981); Michelman, Justification (andJustifiability) of Law in a Contradictory World, in NOMOS XXVIII: JUSTIFICATION 71, 90-

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the one hand, legal rights (epitomized by the model of exclusiveproperty rights) are republicanly abjured as obnoxious intervenors inthe debate of the commonwealth, mediating what ought to be theimmediacy of dialogue and converting the focal question from "whatis the general good?" to "whose is that?"225 On the other hand,Harringtonian theory cannot do without law and legal rights, andknows that it cannot - even if it also denies this dependency.

In the first place, only law and rights can constitute the common-wealth. 226 To take just the most obvious instance, freeholding -Harrington's paradigm of citizen "independence" - seems obviouslyan artifact of legal rights in our own straightforward, positive senseof institutionally secured, well-defined claims of entitlement.

In the second place, the active issue of "reason in the debate of acommonwealth" is and must be just what Harrington calls it: law.2 2 7

It must be a universalistically law-like declaration of rights. It is thelegal character that marks the output of the debate both as the productof reason and as the expression of the citizens' concrete universality,their reciprocal recognition of sameness-within-difference. 228 Delib-erative political reason, it seems, must end by enunciating something- law - that ought to constrain the deliberation itself. Thus lawjoins common good as a second objectivist moment in republican self-government theory. 229

(e) The Distribution of Virtue and the Articulation of Citizenship.- So far, the "deep" republican conception I describe is relatively

94 (J. Pennock & J. Chapman eds. 1986) [hereinafter JUSTIFICATION]; Singer, The Legal RightsDebate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wis. L. REV. 975, 1059.

225 See J. PococK, Cambridge Paradigms and Scotch Philosophers: A Study of the RelationsBetween the Civic Humanist and the Civic Jurisprudential interpretation of Eighteenth-CenturySocial Thought, in WEALTH AND VIRTUE 235, 248-49 (I. Hont & M. Ignatieff eds. 1983);Skinner, supra note 127, at 218.

226 See, e.g., Pocock, supra note 69, at 355.227 See supra P. 40.

228 See Pitkin, supra note 103, at 345.229 Theorizing a comfortable place for individual legal rights within a republican constitu-

tional vision is a task that has never been completed. No republican revival in Americanconstitutional law is likely to last very long without major progress in that task. There is noreason to think progress impossible. See Michelman, in JUSTIFICATION, supra note 224, at 92-94. Although I do not take up the task directly in this Foreword, I can say at least (what mustbe obvious) that republican legal rights are bound to be concerned with participation, capaci-tation, and emancipation. These themes are evident in various works of legal rights advocacy,and of rights-supporting normative theory, based on aims and assumptions that strike me as,broadly speaking, republican in the sense I am proposing in this Foreword. See, e.g., Baker,The Process of Change and the Liberty Theory of the First Amendment, 55 S. CAL. L. Rtv.293 (1982); Cornell, Should a Marxist Believe in Rights?, 4 PRAXiS INT'L 45 (1984); Frug, supranote 114; Michelman, Process and Property in Constitutional Theory, 30 CLEV. ST. L. REv.577 (i98i); Minow, supra note 41; Schneider, The Dialectic of Rights and Politics: Perspectivesfrom the Women's Movement, N.Y.U. L. REv. (forthcoming 1986) (draft on file with the author);Sherry, supra note 68; Simon, supra note 214, at 1431; Sunstein, supra note 72; West, LiberalismRediscovered: A Pragmatic Definition of the Liberal Vision, 46 U. PITT. L. REv. 673 (1985).

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straightforward - about as straightforward as serious political theoryis likely to be. One may or may not find agreeable, or feasible, oreven transparently intelligible, its motivating idea of positive libertyor individual-freedom-as-collective-self-government; but accepting thatmuch arguendo, the rest follows fairly easily.

We come now to a feature of the conception that is not straight-forward; rather, it seems mystified. The mystification involved willdog our story from here on; so we had better get it clear. To do so,we need the notion of "mixed" government or the "balanced" consti-tution.

Classical mixed government theory sees the universe of human-kind, those who are to govern and be governed, as exhaustivelycomposed of just three types: the one, the few, and the many. Con-stitutionally speaking, those correspond to the monarch, the nobilityor aristocracy, and the people at large. 230 To each type is attributedits distinctive political virtue, or principle, or "mode[] of . . . intelli-gence." 23 1 The terms of attribution vary. For our purposes we cansettle illustratively on leadership for the one, wisdom for the few, andexperience or common sense for the many. The balanced constitutionis one that aptly incorporates each principle into a scheme designedso that each is fully utilized but strictly confined to its proper sphere.

The republican ideal of a governmental balance constituted of afew primal types had for its original motivation a metaphysical im-pulse (or so we may as well assume) - the impulse towards univer-sality and constancy that we have already found present at the crea-tion of civic-humanist republicanism. 232 If the three primal types areall there are in the political universe, then the balanced constitutionconstitutes "a universal political harmony. '23 3 Moreover, if instabilityis a matter of particularity, and there are only three particulars, thenan equilibrium constituted of the three implies stability and constancyin the ordering of human affairs. 234

Harrington's thought about mixed government seems prompted notby metaphysics but by practical reason. His objective is to adapt thevision of inclusive, participatory politics to a given set of empirical

23 0 See G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at i99 (i969).

231 Pocock, Historical Introduction, in J. HARRINGTON, POLITICAL WORKS, supra note 2,

at 16.232 See supra p. 37. The standard reference for mixed-government theory is Polybius, a

Stoic historian of the second century B.C. Polybian ideas entered into civic humanist republicanthought along with much else drawn from classical sources. See generally J. POCOCK, MACHIA-VELLIAN MOMENT, supra note 138, at 76-8o (discussing the early history of ideas of mixedgovernment). Harrington adapted these ideas and later introduced them into the discourse ofpost-Restoration English constitutional debate, contributing to the doctrine of "virtual represen-tation" that will occupy us much below. See infra pp. 50-52.

233 J. POCOCK, MACHIAVELLIAN MOMENT, supra note 138, at 79.234 See id.

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conditions. He sees two salient conditions: first, there is the ever-present hazard of corruption. A frail citizen is all too likely to confuseparticular with common interest. Needed is an order "of a governmentas... shall be able to constrain" citizens lured towards particularityto stand by the common good. 235 We want an order that "may, naymust, give the upper hand in all cases to the common right or interest,notwithstanding the nearness of that which sticks to every man inprivate., 236

Second, there is the fact that individuals differ in their talents andcallings for government. Deliberating rightly towards the commoninterest - setting the agenda, defining and evaluating the alternatives- is a difficult task. It takes "wisdom," by which Harrington plainlymeans the kinds of analytical and communicative strengths we wouldassociate with fine legal counseling or policy analysis. Choosingamong the alternatives, as analyzed and evaluated, is also hard, albeitin a different way. Such choices take knowledge - of the people,their situations, and their needs. Office should match capacity, forall our sakes. 237

The potential for corruption and the differences among individualsare two facts, and they are happily complementary. They also happilyjibe with the classical troika: "The commonwealth consists of thesenate proposing, the people resolving, and the magistracy execut-ing."238 Differentiation between the talents and motives of the fewand of the many allows for a solution modeled on the well-knownrule for dividing one piece of cake among two:239

The wisdom of the few may be the light of mankind, but the interestof the few is not the profit of mankind, nor of a commonwealth.Wherefore [they who divide] must not choose, lest it put out theirlight. But as the council dividing consists of the wisdom of thecommonwealth, so the assembly .. . choosing should consist of theinterest of the commonwealth. As the wisdom of the commonwealthis in the aristocracy, so the interest of the commonwealth is in thewhole body of the people .... 240

Harrington contends that if the few are restricted to "dividing" (thatis, deliberating to the point of discerning, clarifying, and appraisingthe alternatives) and barred from "choosing" (that is, voting to decideamong the alternatives), they will "divide" in good faith to the best

23s J. HARRINGTON, The Commonwealth of Oceana, in POLITICAL WORKS, supra note 2, at

172.236 Id.237 See id. at 173.23S Id. at 174.239 See id. at 172. Harrington shows little further interest in the magistracy, and we can

ignore it.240 Id. at 173.

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of their abilities. He further contends that if the many are restrictedto choosing and barred from deliberating, they will choose well andaccurately in their common interest. He contends, still further, that"in case the commonwealth consist of a whole nation ... too unwieldy• . . to be assembled," the many can be subdivided into representativesand electors and each part, strictly confined to its assigned role, willdependably perform that task well. 24 1 Moreover, each person actingin his role, even if merely electoral, will be experiencing self-govern-ment, realizing both the process of freedom and freedom itself.24 2

Now, you, true democrat, may see here hierarchy, exclusion, andalienation ("self-government" by "representatives"!). But that is not atall, it seems, what Harrington saw. He was thinking and writingfrom within a tradition in which exactly this kind of distribution ofoffice had long been regarded as inclusionary, an affirmation of theuniversality of the republic and of the good of self-government. Fromthis point of view, mixed government was the realization of the Greekideal of isonomia, equality of rule. 24 3 It was a reconciliation of theuniversal ideal of equality with the particular facts of difference -each individual treading "his own path towards universality in asso-ciation with a diversity of others treading theirs. ' 244 We cannot quitesee it that way; not even Pocock's empathically inspired, intricate andsubtle translations can quite bridge the gap between their politicalconsciousness and ours. From our point of view, isonomic mixed-government theory seems a mystification; they were kidding them-selves.

Perhaps what made the theory work for them, although it cannotwork for us, was telos - not only the idea that humanity in generalhas an in-built vocation for citizenship, but also the idea that individ-uals differ in their natures, including the forms of their politicalvocations, so that each has a distinctive role to play in a unified socialwhole. Teleology is a form of equality. Given man's civic telos, thearrangements of mixed government are not a hierarchy, not a renditionto each of that which is particularly his due, not the resolution of aconflict of powers or interests. These arrangements are, rather, anembrace, a "shar[ing] in the possession of a common, public person-ality, . . . the formal structure within which political nature develop[s]

241 Id. at 172-73.242 See id. at 172-74. Elections of representatives are envisioned as strongly participatory,

public events. Broad distribution of the good of participation is supported by proliferation ofminor assemblies and offices to be filled by rotation. See, e.g., id. at i8o-8i; J. POCOCK,

MACHIAVELLIAN MOMENT, supra note 138, at 393-94.243 See J. POCOCK, MACHIAVELLIAN MOMENT, sup a note 138, at 89.244 Id. "[T]he republic is a structure in which men practising diverse virtues respect and

obey those of one another." Pocock, Historical Introduction, in J. HARRINGTON, POLITICALWoRKs, supra note 2, at 64.

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to its inherent end. '245 Thus the Harringtonian distributions of civicvirtue and articulations of office are a third objectivist moment inrepublican self-government theory.

(f) The Deep Tradition Summarized. - We can now see theclassical Harringtonian republican conception as composed of sevenprinciples or impulses: (i) self-government; (ii) practical deliberation ordialogue; (iii) equality (of ruling and being ruled); (iv) antistatism(immediacy); (v) rationally cognizable values ("the general good"); (vi)a mechanistic, role-differentiated constitution - balanced governmentand proprietary independence ("civic virtue"); and (vii) action by pro-mulgation of laws.

At the heart of the conception, motivating the whole, is the firstprinciple: positive freedom realized as self-government through poli-tics. Structured about the conception are three matched pairs ofimpulses in tension (ii-v, iii-vi, iv-vii). The first member of each pairexpresses a subjective or volitional moment of self-government. Thesecond expresses a corresponding objective or cognitive moment. Thethree subjectivist impulses (ii, iii, iv) together describe republican'sparticipatory side. The three objectivist ones (v, vi, vii) togetherdescribe its lawful side.

The objectivist moments - common good, civic virtue, and le-gality - are all essential to the Harringtonian conception but notfundamental within it. They are conditions of the possibility of self-government, for human beings situated in society and history. Thepossibility of self-government itself has the visionary status not of anasserted fact but rather of a felt necessity. The objectivist moments,however problematic, are what must be true, or possible, if self-government is true or possible. The deep republican tradition thusprefigures the modern dilemma of freedom, 246 although without mod-ernism's Enlightened sense of resistance against the oppressions ofassigned social role and determinate social truth.247

C. The Proximate Tradition and Its American Reception

i. Opposition Ideology. - At least two distinguishable strains ofrepublican discourse had appeared in England by the time of theAmerican Revolution. The older was the participatory, civic-repub-lican strain infusing Harrington's works of the 165os and '6os. Thenewer was the so-called Opposition ideology of the succeeding century,which used classical republican vocabulary - such as common good,civic virtue, balance, and corruption - to bear some meanings quitedifferent from Harrington's. To a noticeable degree in Opposition

245 Pocock, supra note 69, at 359; see Frug, supra note 114, at 1085-87.246 See supra pp. 25-26, 31.247 See supra note 87, pp. 22-23.

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rhetoric, republican ideas seem to have exchanged their predominantlypositive-libertarian motivation for a predominantly negative-libertar-ian one. 248

Opposition ideology began as a language of conservative politicalgrievance, prompted by the post-Restoration emergence of modernexecutive government as an actively transformative social force. 249

What had been a diction of visionary aspiration became also one ofthe complaint of the moment. Moreover, the complaint was not, atbottom, that modern government denied its citizens the experience ofruling and being ruled, but that it represented a disturbance or threatto one's personal position in the general order of society, and to relatednotions of traditional right. Antistatism remained in the rhetoric, butits sense was transformed. In Harringtonian thought the sovereignstate, as a government of rulers separated from the ruled, is objec-tionable as alien authority, denying self-government. 250 In Oppositionthought the executive state, with its concentration of means and in-fluence, becomes suspect as excessive power, endangering the interestsand rights of subjects. For Harringtonians, sovereignty is concep-tually the. antithesis of political liberty. For the Opposition, govern-ment is operationally the antagonist of individual position, wealth,and right.

Rhetorical meanings shifted with the context of political debate.In Harrington's time one might have spoken of a debate between a"participatory" and a "liberal" ideal: the former hostile to sovereign

248 On "positive" and "negative" liberty, see pp. 25-26 above. In what follows I emphasize

the negative-libertarian aspect of Opposition thought, because that is the side of it that seemsto have had the greater impact on American political rhetoric and ideas. See generally B.BAILYN, THE IDEOLOGY OF THE AMERICAN REVOLUTION 35-93 (I967); C. ROBBINS, THEEIGHTEENTH CENTURY COMMONWEALTHMAN: STUDIES IN THE TRANSMISSION, DEVELOPMENT

AND CIRCUMSTANCE OF ENGLISH LIBERAL THOUGHT FROM THE RESTORATION OF CHARLES

II UNTIL THE WAR WITH THE THIRTEEN COLONIES (1959). I do not mean to deny that a

positive-libertarian republican strain persisted along with - perhaps in fusion with - the newermovement in Opposition thought, see, e.g., S. LYND, INTELLECTUAL ORIGINS OF AMERICANRADICALISM 55-56 (1968) (discussing the views of English radical Richard Price); J. POCOCK,Authority and Property: The Question of Liberal Origins, in VIRTUE, COMMERCE, AND HISTORY51, 70-71 (1985) [hereinafter Authority and Property]; Banning, Jeffersonian Ideology Revisited:Liberal and Classical Ideas in the New American Republic, 43 WM. & MARY Q. 3, I2 & n. 30(1986); infra note 257.

249 The targets of reaction included the institutional apparatus of ministries, bureaucracies,patronage, and the standing army; policies of commercial expansion and military activism;resulting tax burdens for landowners; symbiotic growth of private financial power and govern-mental credit financing; and a general sense of a government-supported shift of power andstatus from land-owners to the mercantile and financial classes. See, e.g., J. POCOCK, MACHIA-VELLIAN MOMENT, supra note 138, at 425-27, 447-48; Pocock, Historical Introduction, in J.HARRINGTON, POLITICAL WORKS, supra note 2, at 133-38; J. POCOCK, Authority and Property,supra note 248, at 68-69; ef. B. BAILYN, supra note 248, at 123-25 (describing Americanversions and echoes of English Opposition concerns).

2So See supra p. 42.

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legal authority above and distinct from the people subject to it; thelatter receptive to sovereign government, under some kind of ultimatepopular control. 251 The Restoration and the Glorious Revolution set-tled that debate, at the level of practice if not vision. Liberal sover-eign institutions plainly prevailed, perhaps reflecting a widened dis-tance between the business of governing and the economic and culturalpreoccupations of ordinary life among the advantaged classes - sov-ereignty grown apart from modernizing "economic and social man."252

From an eighteenth-century, conservative Opposition standpoint,the problem of government had became that of holding it in check,so as to preserve the assertedly traditional rights, privileges, wealth,and status of the subjects. This oppositional view easily found ex-pression in a classical republican vocabulary. Preservation of rightsbecame the common good. Devotion to this common good becamecivic virtue. Republican "balance" - beginning its historic transmu-tation into Madisonian checks and balances 253- became an "opposi-tional interpretation of the parliamentary constitution" according towhich Parliament checks the Crown rather than combines with it asKing-in-Parliament. 254

Thus in Opposition rhetoric the common good, consisting of pro-tection for rights and liberties, could be achieved through respect forthe established forms of the balanced constitution. 255 Commitment tothat work was civic virtue. Self-serving distraction from it was cor-ruption. In the English constitutional balance, it was Parliament'sfunction to supervise and limit the ever-encroaching executive, thatis, the Crown and its ministers. Parliament was failing in this office,because of corruption. 256 Opposition rhetoric had all the hortatory

251 See Pocock, Historical Introduction, in J. HARRINGTON, POLITICAL WORKs, supra note

2, at 146; Pocock, Cambridge Paradigms and Scotch Philosophers: A Study of the RelationsBetween the Civic Humanist and the Civil Jurisprudential Interpretation of Eighteenth-CenturySocial Thought, in WEALTH AND VIRTUE: THE SHAPING OF POLITICAL ECONOMy IN THESCOTTISH ENLIGHTENMENT 235, 248-49 (1983); J. POCOCK, The Mobility of Property and theRise of Eighteenth-Century Sociology, in VIRTUE, COMMERCE, AND HISTORY 103, 107-O8 (1985)[hereinafter Mobility of Property]; J. POCOCK, Authority and Property, supra note 248, at 55-56.

252 Pocock, Historical Introduction, in J. HARRINGTON, POLITICAL WORKS, supra note 2,at 141; see id. at 146. On the persistence of the participatory vision, see note 248 above.

253 That is, the deliberate division of government into subsidiary authorities whose relationsare designed so that each will be prevented by others from invading the rights of citizens. Seegenerally THE FEDERALIST, supra note 9 i , No. 51 at 347 (J. Madison).

254 Pocock, Historical Introduction, in J. HARRINGTON, POLITICAL WORKS, supra note 2,

at 144; see id. at 141; J. POCOCK, MACHIAVELLIAN MOMENT, supra note 138, at 420, 450.255 See B. BAILYN, supra note 248, at 76-77.256 The independence of individual Members was corrupted by executive blandishments in

the form of offices, pensions, and loans. The independence of the whole was corrupted by adoctored representational scheme with its rotten boroughs. As a result, Parliament was seducedinto support of various schemes - national debts, standing armies, excises - disfavored by

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republican themes - common good, civic virtue, participation, in-dependence, corruption, and balance - but they were now being usedin the service of self-protection against the government: negative lib-erty.

25 7

Users of this rhetoric of grievance came to include not only con-servative country gentry but also radical dissenters and civil libertar-ians. 258 Together they became known as "commonwealthmen," fromtheir historical ties to English radicals of the Commonwealth period. 25 9

It was their republicanism that, by the standard histories, crossed thesea to the receptive ears of colonists aggrieved by excises, mercantilerestrictions, rumors of Anglicanization, heavy-handed royal governors,unresponsive privy councillors, and lack of representation. 260

2. The Puzzle of Representation (a) The Target: Virtual Represen-tation. - Whenever sovereignty is an accepted fact and self-govern-ment an asserted value, a chief issue of politics must be that of therelations between rulers and ruled. Those who have sovereign rulers,and so are not rulers themselves, cannot be considered self-governing

users of Opposition rhetoric, while the executive battened and verged towards authoritarianmonstrosity. See J. POCOCK, Mobility of Property, supra note 251, at 66; G. WOOD, supra note230, at 170, 201; cf. B. BAILYN, supra note 248, at 129-30 (describing American versions orechoes of these English Opposition concerns).

257 Complaints of encroachment on "political liberty" or "constitutional rights," see, e.g., B.BAiLYN, supra note 248, at 8o-8i; Appleby, supra note 87, at 307, may be regarded as anintermediate stage. For political liberty, in the sense of a right of participation in government,was itself coming, or had come, to be valued as a safeguard against governmental overreaching,see, e.g., B. BAILYN, supra note 248, at 46-48, 65, 76-79, 85-86; J. POCOCK, MACHIAVELLIANMOMENT, supra note 138, at 474; Shalhope, Republicanism and Early American Historiography,39 WM. & MARY Q. 334, 334-36 (1982) (describing "libertarian republicanism"), if not sounambiguously as the express limitations on governmental authority which were soon to becomean American constitutional invention. See, e.g., Appleby, supra note 87, at 293, 298, 307.Skinner explains how even high-classical, Machiavellian republicanism may be understood asan essentially negative - not positive - libertarian ideology:

Only those who place themselves whole-heartedly in the service of their community arecapable of assuring their own liberty.... Personal liberty . . . depends . . . on pre-venting the [rulers] from coercing the [people] into serving their ends. But the only wayto prevent this from happening is to organize the polity in such a way that each andevery citizen is equally able to play a part in determining the actions of the body politicas a whole .... Only if we are prepared to . . . 'act on behalf of' the common good* . . can we hope to avoid a state of tyranny and personal dependence ....

Skinner, supra note 127, at 193, 213-14; cf. B. BAILYN, supra note 248, at 135 (describing theviews of John Adams).

258 See B. BMALYN, supra note 248, at 132-34; S. LYND, supra note 248, at 24-61; Kramnick,Republican Revisionism Revisited, 88 AM. HIST. REV. 629, 639-43 (1982).

259 See B. BAiLYN, supra note 248, at 34; C. ROBBINS, supra note 248.260 See B. BAILYN, supra note 248, at 35-159; Shaihope, supra note 257, at 35o. The survey

of post-Bailyn historiography in Shalhope, supra, shows scholars uncovering an impressivevariety of republicanisms in early American thought, but casts no doubt on their generallynegative-libertarian leanings. Shalhope's synthesis of the whole body of literature is that "liberaland classical ideas existed in constant tension. They shaped and influenced each other until theend result was a bastardized form of each." Id. at 350.

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unless - perhaps - the rulers represent the ruled in some requisitesense.

A representational theory seemingly well-suited to the coexistenceof unchallenged sovereignty with the republican notions of generalgood, civic virtue, and constitutional balance, is that of virtual rep-resentation. Virtual representation doctrine reached its ultimate syn-thesis as the British response to colonial objections against taxationby a Parliament in which Americans were voiceless.2 6 1 As such, itbecame an object of scorn and execration in the colonies. 2 62 Yet, aswe shall see, the idea of virtual representation has never, in principle,been finally rejected by Americans. 263

The doctrine of virtual representation asserts that one can berepresented in a political regime in which one has no actual partici-patory role, not even as an elector, through the participation of an-other who is one's likeness. 2 64 Its appearance in eighteenth-centurypolitical discourse reflects the fact that representation in the House ofCommons bore no relation to population. Some "rotten boroughs,"practically devoid of inhabitants, elected Members to Parliament,while some populous cities elected none. 265 Viewed through the lensof classical mixed-government theory, this circumstance presented nofundamental difficulty.2 66 The commons ("the many") were too manyto be present as a body. No matter, as long as they were envisionedas a fungible collection with characteristic insights and outlooks. Onthat condition, all commoners could be considered virtually presentthrough that portion of their body that was actually present. Throughtheir virtual representation, the commoners' viewpoint was involvedin the constitutional balance.2 67

Virtual representation illustrates well how the republican notionsof common good, civic virtue, deliberation, and independence areconceptually severable from the republican value of self-government.Regarded as an adjunct of classical mixed government theory, virtualrepresentation logically compels an understanding of the parliamentaryMember's office as obligating him to act deliberatively, with a viewto the general interest of the empire as a whole, as opposed to the

261 See B. BAILYN, supra note 248, at 166-67; G. WOOD, supra note 230, at 173-76.262 See B. BAILYN, supra note 248, at 167-70.,263 See G. WOOD, supra note 230, at 176.264 See, e.g., H. PITKIN, THE CONCEPT OF REPRESENTATION 174-80 (1972) (discussing

Burke's theory of the representation of interests).265 See, e.g., G. WOOD, supra note 230, at 175-76.

266 Virtual representation can also work with a conception of the interests meriting repre-

sentation that is somewhat more particularized than "the one," "the few," and "the many." SeeH. PITKIN, supra note 264, at 174-77 (discussing Burke's theory of virtual representation of"broad, relatively fixed interests of which any group or locality has just one," such as a mercantileor agricultural interest).

267 See G. WOOD, supra note 230, at 174-75.

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parochial interest of electoral constituency.268 It does not quite logi-cally compel, but does intuitively keep company with, a strict "Bur-kean" view of the office as one calling for the Member's exercise ofpersonal judgment independent of constituent views or instructions. 269

Such a view, although it entails the notions of the empire's generalgood and the Member's civic virtue, deliberation, and independence,leaves nonmembers with no participatory role save at the hustings,and nonconstituents with no participatory role at all.

For a citizenry ultimately concerned about the misuses of power,there seems to be nothing basically objectionable about virtual rep-resentation. Virtual representation may deny self-government, but forsuch a citizenry, self-government is not the point. The point is thatgovernmental power should respect one's interests or hearken to one'sviews; any group of reasonably capable, like-minded, and determinedMembers can accomplish that for us all.

(b) The Arguments: Virtual vs. "Actual" Representation. - Never-theless, virtual representation did become a target of polemical attackby both British Oppositionists and the American proto-revolutionarieswho took up their ideas. The attacks took various forms and restedon various grounds. Some were immanent critiques, accepting virtualrepresentation in principle but complaining of betrayal of the principlein practice. Others were radical critiques, denying the validity inprinciple of virtual representation and demanding "actual" represen-tation in its stead.

A first immanent critique focused on defects of apportionmentepitomized by rotten boroughs. Its argument was that a scheme sosusceptible of arbitrary manipulation could not be relied upon toproduce an independent House, able and determined to inject into theconstitutional balance a strong principle of resistance against executiveencroachment. 270 A second immanent critique focused not on manip-ulation as a threat to independence but on an actuality of misrepre-sentation. The genius of "the many" is their direct knowledge of theinterests and needs of the people - knowledge that can be countedupon to make their "choosing" compatible with those needs. 2 7 1 Thebalance, therefore, is awry if the House embodies "a different interest

268 See id. at 175-76; cf. H. PITKIN, supra note 264, at 186-87 (discussing Burke's view

that the country's fixed and permanent interests, such as the trading interest, coincide with itsgeneral, national interests).

269 See E. BuRKE, BuRKE's POLITICS 115 (R. Hoffman & P. Levack ed. 1949) (speech tothe electors of Bristol); H. PITKIN, supra note 264, at 169-70, 176, 18l.

270 See G. WooD, supra note 230, at 170, 201. In this view, the rule of apportionmentaccording to population is a prophylaxis against political intrigue, prefiguring a major inspirationfor its use in judicial oversight of legislative apportionment in our own day. See, e.g., J. ELY,supra note 95, at 124.

271 See supra pp. 45-46.

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from the collective, '272 as seemed obviously true in the case of Amer-icans supposedly represented by inhabitants of Great Britain. 273 Athird immanent critique is more process-oriented. It says that theknowledge and determination required to resist encroachment dependnot only on independence from the executive but also on direct andpalpable reinforcement from with the people. It thus demands largeassemblies (small constituencies) and frequent elections. 274 In theserespects it leans towards participation, but still as an instrument ofcontrol of the government and not as a mode of self-government.

All of the immanent critiques accept the premise of sovereign rule,and none is logically at odds with virtual representation. 275 Accordingto all, governing is for governments, and the problem is to constructa government that will serve and respect the interests, rights, andgeneral good of the governed. The governed hold those interests andrights in common, enough so that a select group of them, deliberatingin good faith, can discern what they demand by way of policy. Ifthere is disagreement among the immanent critiques, it is over themechanics of picking and motivating the select group.

Before and after the Revolution, other voices called for somethingcalled "actual" representation. These demands also took multipleforms. One version, reminiscent of Harrington, 276 sought to reconcilethe accepted institutional necessity of representative government withthe desire for actual self-government by all the people. With suffi-ciently numerous and well-drawn constituencies, this version's pro-ponents contended, the assembly could be the people's portrait inminiature, feeling and thinking just as the people do in all theirplurality, acting just as the people would if actually present. More-over, through such a system people could recreate the true republicof full and constant popular self-government. The people would al-ways be present "in effect," not merely checking the government butbeing it.277 Consent would flow continuously, not just in election day

272 G. WOOD, supra note 230, at 65.273 This seems to have been the most characteristic theme of colonial attacks on the system.

See B. BAmLiN, supra note 248, at 167-69; G. WOOD, supra note 230, at 176-78. At theextreme, it is as if the wrong country is represented. American conditions, needs, interests, andoutlooks were simply too different and distant from those of the home country to make virtualrepresentation by Britishers credible to Americans. The immanent, non-radical character of thiscomplaint is attested by Edmund Burke's support of it. See I R. PALMER, THE AGE OF THEDEMOCRATIC REVOLUTION 178-79 (959); H. PITKIN, supra note 264, at 177.

274 See G. WOOD, supra note 230, at 164-68; J. POCOCK, MACHIAVELLIAN MOMEMT, supra

note 138, at 407, 478 (describing importance of frequent elections in English Oppostion propos-als).

275 See G. WOOD, supra note 230, at 178-79 (noting that the new American states readily

withheld the franchise from women, young men, and men having too little property).276 See supra p. 46.277 See B. BAiLvN, supra note 248, at 172.

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spurts. Law's authority would stem not from the command of analienated sovereign but from self-legislation. 278

Taken literally, actual-representation theory in that form seemsdelusive, insisting that the absent are present, the passive active. Yet,just as with Harrington, we can find a less mystified reading279 -one in which popular participation is indubitably actual, although itsmain arena is not the formal legislative assembly, but rather a dis-persed and continuous process of political discussion among coconsti-tuents, and between them and their representatives. The character-istic images are of taverns and town meetings, the people out of doorscomparing candidates, debating policies, formulating instructions.For Americans alive and active in the extraordinarily politically ex-cited period of the I76os and '7os, these would have been realisticpictures of self-government.

There was also in the field, then or a little later, a quite differentform of actual-representation theory, seemingly most unrepublican indispensing with common good and civic virtue. According to thatversion, constituencies have varying, parochial interests. They canbe represented only by persons who will speak and act for those localinterests in affairs of the central government. 280 By clear implication,those affairs cannot, in this view, be classed as deliberations. Theyare instead transactions. This view is incipient pluralist theory.28'Regarded at the level of what we can call daily government, it isrepublicanism's antithesis. Yet it also invites a visionary splitting ofcivic personality, in a "dualist" conception that might contain moreself-government than any form of across-the-board representation. Inthe dualist view, day-to-day government is by representatives and ispluralist; but there are also moments of extraordinary civic engage-ment, in which an actually participatory people give themselves theirhighest law. 282

(c) The Outcome. - Which of these theories, if any, prevailed inthe Constitution is, of course, a question subject to continuing inter-pretative debate. On one view, 283 the Constitution is simply andthoroughly pluralist. Legislators can represent "actually," becausewhat they represent is not persons but interests. 284 The representa-tive's task is to advance the represented interests through coalition,

278 See B. BAILYN, supra note 248, at 171-75.279 See, e.g., J. WILSON, Speech on Choosing the Members of the Senate by Electors;

Delivered on 31st December, 1789, in the Convention of Pennsylvania, in 2 THE WORKS OFJAMES WILSON 781, 786-788 (R. McCloskey ed. 1967).

280 See G. WOOD, supra note 23o, at 188-96. It is, therefore, entirely appropriate to bindthese delegates tightly by instructions. See id. at 189-9o.

281 See supa p. 21.282 See infra pp. 6o-61.283 See, e.g., R. DAHL, A PREFACE TO DEMOCRATIC THEORY (1956).284 Cf. H. PITKIN, supra note 264, at 182-83 (describing Burke's view).

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negotiation, trade, and compromise. Some hold that, in the process,if all goes well, the total sum of the satisfactions of interests is max-imized, in some sense that is hard to define. Be that as it may, thereis, in the pluralist view, no other general good. 285

On another view, the constitutional scheme is one of "deliberativedemocracy"286 - a mechanism for selecting and motivating represen-tatives who will display, or simulate, civic virtue by deliberatingcapably and sincerely towards discernment and enactment of the gen-eral good, with perhaps some leaven of barter among parochial inter-ests. 287 Thus strictly understood, the scheme is not one of self-gov-ernment. Indeed, its objectives might, in principle, be fully servedby a virtual-representation system in w-hich the constituencies werenot coextensive with the citizenry. 288

These two conceptions - pluralism-and deliberative democracyare the more "realistic" contestants in current interpretative debate.

There is other scholarship supporting a somewhat more Harringtonianreading of the constitutional scheme as designed to engage the civicvirtue and accommodate the self-government of the people at largethrough their electoral and instructional roles. 289 And there is, finally,scholarship supporting the dualist design by which self-government ispreserved in constitution-making. 290

m. REPRESENTATIONS OF VIRTUE

A. Self-Government in Constitutional Vision

In what sense is the United States Constitution, as construed, acharter of self-government? Most obviously, the Constitution to someextent protects individual and group autonomy by curbing the powersof federal, state, and local governments. 291 Moreover, some judicial

285 For discussions of pluralist theories of constitutionalism and the general good, see Mi-chelman, Constitutions, Statutes, and the Theory of Efficient Adjudication, 9 J. LEGAL STUD.431 (1980); Michelman, supra note 95.

286 See G. WILLS, EXPLAINING AMERICA: THE FEDERALIST 179-247 (1981); Sunstein, supranote 72, at 45-48.

287 See CONSTITUTIONAL LAW, supra note 74, at 17.288 See J. POCOCK, MACHIAVELLIAN MOMENT, Supra note 138, at 517-18; G. WILLS, supra

note 286, at 236; G. WOOD, supra note 230, at 179-8o.289 See D. EPSTEIN, THE POLITICAL THEORY OF THE FEDERALIST 97, 107, 147-48, 153

(984).290 See Ackerman, supra note 65.291 See, e.g., Roberts v. United States Jaycees, 468 U.S. 609, 617-x8 (1984) (dictum) (stating

that the Constitution protects rights of "expressive" and "intimate" association); Moore v. Cityof East Cleveland, 431 U.S. 494 (1977); Wisconsin v. Yoder, 406 U.S. 205 (1972); Griswold v.Connecticut, 381 U.S. 479 (1965); NAACP v. Alabama, 357 U.S. 449 (1958). The Court's effortin National League of Cities v. Usery, 426 U.S. 833 (1976), overruled, Garcia v. San AntonioMetropolitan Transit Auth., 105 S. Ct. 1005 (1985), to define a zone of state sovereignty protected

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decisions that limit or qualify constitutional doctrines of individualautonomy may be understood as doing so for the sake of enablinglocal political communities to make their own value-determinativechoices.292 The conflict between these two principles - of "individ-ual" and "community" self-determination - reflects a characteristictension in the general concept of self-government. 293 A Constitutionin whose name such a tension was aptly sustained might be called acharter of self-government.

Yet the Constitution, in this account of it, supports self-govern-ment only by way of exclusion. The account envisions self-govern-ment as a process beyond and opposed to the processes that theConstitution affirmatively charters, a process to be protectivelybounded off in a realm safely apart from that of government in theordinary sense. This separated realm we call "private," meaning todemarcate it clearly from the "public" realm of the governmentproper.294

Thus the question remains: where, if anywhere, can we find self-government inside the Constitution? To regard constitutional limita-tions as an insufficient guarantee of true self-government is not todeprecate the realm of the private or to seek its fusion, in concept orin doctrine, with that of the public. 295 One may simply considerfreedom incomplete without public as well as private self-government.More strongly, one may doubt the possibility of private unaccompan-ied by public self-government. 296

against federal government incursion plainly reflects judicial concern for self-government at thestate and local levels. See Garcia, io5 S. Ct. at 1021, 1027-29 (Powell, J., dissenting) (invokingthe antifederalists). However, federal constitutional protection of political autonomy at thestatehouse level can do little for self-government in the positive, participatory sense I intend.That is much more an issue for state law dealing with local government structure and powers.See Frug, supra note I14, at io62-73.

292 The clearest example is probably Belle Terre v. Boraas, 416 U.S. x (i974). See Michel-man, Political Markets and Community Self-Determination: Competing Judicial Models of LocalGovernment Legitimacy, 53 IND. L.J. 145, 95-99 (1977-1978). A frightening and outrageousexample - if it is an example - is Bowers v. Hardwick, io6 S. Ct. 2841 (1986). See id.

293 See supra pp. 25-27, 31.294 Local governments have a double aspect - private vis-a-vis hierarchically superior

governments, public vis-a-vis their own citizens - directly expressed by the judicial urge todifferentiate their truly governmental functions from their nongovernmental ones. See, e.g.,United Transp. Union v. Long Island R. Co., 455 U.S. 678 (1982); Frug, supra note 114, at1099-1120. Compare Reeves, Inc. v. Stake, 447 U.S. 429 (198o) (holding that a state is lessrestricted by the "dormant commerce clause" when acting as a "market participant" than as'market regulator"), with South-Central Timber Dev. Co. v. Wunnicke, 467 U.S. 82 (1984)(narrowly confining the "market participant" doctrine).

295 See, e.g., B. BARBER, STRONG DEMOCRACY I17-19 (1984); Ackerman, supra note 65, at

1032-35 ; Cornell, supra note 87, at 294; Fraser, Legal Amnesia: Modernism Versus The Re-publican Tradition in American Legal Thought, 60 TELOS 15, 28-29 (1984).

296 Possible reasons for so doubting are suggested at p. 27 above.

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Still, the question of where to find self-government under "thisConstitution 297 is undeniably baffling (not to say wistful), because thedocument so obviously charters not a participatory democracy but asovereign authority of governors - representatives - distinct fromthe governed. Moreover, most people have trouble imagining, orimagining the framers imagining, how it might have been otherwisein practice. 298 That the question is not abandoned, despite its bafflingquality, may attest to the depth of both the wish for freedom and theperception of freedom's dependence on self-government.

For whatever reason, answers keep coming to this question oflocating self-government in the Constitution. Most familiar are thosethat echo classical republican isonomia.299 Answers of this sort en-vision the people at large engaged more or less regularly in politics.Their communications among themselves produce communications tothe government, not only in the form of election-day votes but alsoin petitions, lobbies, mass media reports, opinion surveys, and soforth. Moreover, the Constitution itself is construed to support pre-cisely this communicative process. The Meiklejohn-Brennan readingof the first amendment as a guarantee of the free flow of ideas, insupport of popular self-government, is such a reading of the Consti-tution. 300 Some recent scholarship contends that isonomic participa-tion extends not just to matters legislative but to matters juridical,that is, to the making of constitutional and common law.30 1

Political participation of this sort is certainly valuable. However,for some searchers 30 2 - including some who fully accept the need forsovereignty and do not advocate its radical replacement by partici-patory democracy - such answers are not enough, or not convincing;or so we must infer from their efforts to find, in this Constitution,more than isonomic residues of the deliberative republic of tradition.

297 See Van Alstyne, Interpreting This Constitution: The Unhelpful Contributions of Special

Theories of Judicial Review, 35 U. FLA. L. REV. 209 (1983).298 The antifederalists had this trouble themselves. See H. STORING, supra note 75, at I8.299 See supra pp. 46-47.

300 See New York Times Co. v. Sullivan, 376 U.S. 254 (1964); A. MEIKLEJOHN, FREESPEECH AND ITS RELATION TO SELF-GOVERNMENT (1948); Brennan, The Supreme Court andthe Meiklejohn Interpretation of the First Amendment, 79 HARv. L. REv. 1 (1965); Hastie, FreeSpeech: Contrasting Constitutional Concepts and Their Consequences, 9 HARv. C.R.-C.L. L.REv. 428 (1974). This reading should be contrasted with one such as Professor Baker's, inwhich expressive communication is valued not only as a mode of enlightening citizens on mattersof public policy and of communication between citizen and government but also as a mode ofself-government in the sense of self-transformative action in a social setting. See, e.g., Baker,supra note 229.

301 See R. DWORKN, LAW's EMPIRE 413 (1986) (affirming law's "protestant" character); L.TRIBE, supra note 221, at vii (asserting that we "all" make constitutional choices: as judges,officials, scholars, and citizens).

302 See infra pp. 58-60.

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These scholars believe that by locating the Constitution in the civictradition, rather than over against it, we can learn to get more self-government out of it.

B. Economies of Virtue

Civic virtue can be understood as a certain combination of moti-vation and ability: the motivation to deal with public questions bysincere engagement in deliberative colloquy aimed at discernment ofthe general good, and the ability to do it well. Assuming that civicvirtue is in shortage - that there is too little in the aggregate tosupport a successful direct-democratic republic - how might a con-stitution contrive to economize on the available supply? The inevi-table answer to the problem of economizing on civic virtue is repre-sentative government, especially in light of the formidable practicalbarriers to direct democracy in countries larger than the canton ofGeneva. 30 3 From here on, however, the principles of the economy ofvirtue vary according to the designers' imaginations.

According to Cass Sunstein, James Madison's basic idea was toensure that the limited supply of civic virtue resided in the peopleresponsible for the day-to-day decisions, the representatives. 30 4 Re-distributing civic virtue would be difficult, if not impossible, but itmay be possible to arrange that the persons who start out with rela-tively large civic virtue endowments become the representatives. Per-haps this can be accomplished by creating an "extended" republic witha relatively small legislative assembly and relatively large electoralconstituencies. 30 5 In large constituencies, as in extended states, thecomplex diversities of interests, combined with difficulties in com-munication and coordination among political allies, are expected tohinder factional coalescence. 30 6 When the problems of coordinationthus render it very difficult to pursue particular interests throughpolitical action, citizens' underlying but weak perceptions of the publicgood have a chance to become effective motivators, both within the

303 Geneva was Rousseau's model for the participatory republic depicted in The SocialContract. See Cole, Introduction to J. ROUSSEAU, supra note 93, at vii, xxvi.

304 What follows is my extremely abbreviated rendition of Sunstein's account of Madison'sviews in Sunstein, supra note 72, at 38-48. It does far less than justice to either of the originals.Sunstein's interpretation of Madison has ample scholarly support. See, e.g., D. EPSTEIN, supranote 289, at 88-Iio, 154-55; G. WILLS, supra note 286, at 197-264. But see, e.g., C. BEARD,AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES (1913); R.DAHL, supra note 283. The crucial primary sources are, of course, The Federalist Nos. io, 51(J. Madison).

305 See THE FEDERALIST, supa note 91, No. io, at 64 (U. Madison).306 "Faction" stands for inevitable differentiation and conflict of private interests by reason

of differential "faculties" and the gathering of the differentiated interests into potentially exploi-tative political alliances that aim at self-satisfaction rather than at public good. See id. at 57-

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constituency electing a representative and within the assembly of rep-resentatives. 30 7 Thus the representatives will "have the virtue asso-ciated with classical republican citizens." 30 8

The main conclusion Sunstein wishes to draw is that Madison'ssolution was emphatically not to "accept the interest-group struggle asa desirable part of politics that would promote social welfare." 3 09

Rather Madison kept republican faith with the ideals of an objectivepublic good 310 and of the pursuit of this good through political delib-eration. 3 1 ' Having thus located in the Constitution this republicanconception of politics - as a joint, good-faith deliberation about thepublic good - Sunstein urges that this conception both supports andsuggests reform of the doctrine of judicial review of the "rationality"of statutes and of various aspects of administrative process. 3 12

According to Bruce Ackerman, the framers' plan for economizingon civic virtue was quite different from the one Sunstein depicts. InSunstein's reading, the plan is to concentrate civic virtue in the rep-resentatives. In Ackerman's reading, the plan allocates civic virtueto each citizen. It envisions each citizen as divided, acting sometimesas a "private citizen" devoted to public affairs and sometimes as a"private citizen" preoccupied with his own affairs. 3 13 The economizingstrategy that Ackerman attributes to the framers is to conserve eachcitizen's short ration of civic virtue for use when it counts. Ackermanapparently wants to explain how the Constitution contrives to makeAmericans actively self-governing, if only to a limited extent. Heexpects that by showing us how the framers envisioned the possibilityof self-government - occasional only, but actual and immediate whenit occurs - he can help us recover the practice.

In that respect, Ackerman's project promises more than Sunstein's.Sunstein's seems to reserve the ethically significant experience of self-government to the representatives; they are the ones who "have the

307 It is expected that electors will choose well-qualified representatives and that the systemwill "refine and enlarge the public views by passing them through the medium of a chosen bodyof citizens, whose wisdom may best discern the true interest of their country and whosepatriotism and love of justice will be least likely to sacrifice it to temporary or partial consid-erations." Id. at 62, quoted in Sunstein, supra note 72, at 41.

303 Sunstein, supra note 72, at 42.

309 Robert Dahl influentially attributed a normative interest-group pluralist view to Madison.

See R. DAHL, supra note 283. Garry Wills later objected that Dahl had misunderstood Madi-son's conception. See G. WILLS, supra note 286, at 216-37; Ackerman, supra note 65, at io3i-

32 n.48. Sunstein, with reservations, agrees with Wills. See Sunstein, supra note 72, at 41n.56.

310 In Madison's famous words, "the rights of... citizens [and] the permanent and aggregateinterests of the community." THE FEDERALIST, supra note 91, No. io, at 57 (J. Madison).

311 See Sunstein, supra note 72, at 47.

312 See id. passim.

313 Ackerman, supra note 65, at 1034-35; see id. at 1031-32 (emphasis in original).

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virtue associated with classical republican citizens." 314 Sunstein's con-ception gives a new meaning to "virtual representation." By contrast,Ackerman's conception, if successful, confirms self-government - theactual, freedom-bearing experience - for the national citizenry atlarge. It is not clear, however, that Ackerman's project succeeds, orthat it possibly can. It may contain, unavoidably, a twist on "virtualrepresentation" more surprising than Sunstein's.

C. The People, Where?

In his Storrs Lectures,3 15 Ackerman endorses the value of positiveliberty - of political dialogue as a mode of individual freedom. 3 16

However, if we inquire closely as to where the practice of dialogicself-government most credibly appears in Ackerman's visionary pictureof constitutional practice, we come to a curious answer: in the judi-ciary.

Ackerman urges interpretation of the Constitution as contemplat-ing, and of The Federalist as advocating, a "two-track" system of law-making. The first track, "constitutional politics," consists of thoserelatively rare moments when the people are genuinely aroused topolitical issues they regard as fundamental. At these moments, thepeople mobilize themselves to the intensely deliberative, public-re-garding frame of mind expected of republican citizens. 3 17 We thePeople actually speak. The second track, "normal politics," is thedoing of Congress. It comprises all of American political history,except the rare moments of "consititutional politics." Normal politics

314 Sunstein, supra note 72, at 42. David Epstein, whose support Sunstein properly claimsfor the proposition that Madison contemplated representatives deliberating toward the publicgood, does not agree with Sunstein that Madison "willingly abandoned the classical republicanunderstanding that citizens generally should participate directly in the processes of government."Id.; see D. EPSTEIN, supra note 289, at 97.

31s See Ackerman, supra note 65.316 Ackerman does not undertake to explain the value of active citizenship, except for one

allusion to the notion of "the good life [as] the political life." Id. at 1032. Usually Ackerman'sdiction associates "freedom" and "liberty" with the private side of life. See id. at 1022, 1032.But he also deploys considerable positive-libertarian, dialogic rhetoric: in the citizen mode people"redefine ... [their] collective identity," id. at 1oo, "determin[e] to transform the character of[their] most fundamental political commitments as a nation," id. at io69, and "engage in ...self-government," id. at 1043. Ackerman says that his favored constitutional conception respondsto an "ongoing problem of self-definition," id., and "provide[s] us with the language and processwithin which our political identities [can] be confronted, debated, and defined," id. at i072.

The framers were above all self-congratulatory and have above all been admired for theireffort to devise constitutional arrangements that would motivate or simulate governmental virtueeven amidst private-regarding citizens and officials. See supra notes 304-32 and accompanyingtext. If The Federalist is to be believed, the framers thought they had succeeded. If so, thereasons for the reservation of constitution-making to the citizenry at large, on which Ackermanplaces such importance, cannot be purely prudential.

317 See Ackerman, supra note 65, at 1022, 1038.

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is the country's method of dealing with the stream of issues thatdemand attention without diverting the people at large from theirprivate preoccupations. 3 18 In normal politics, public-regarding con-duct is welcome but not usually expected. Normal politics consists,rather, of privately self-serving "pulling and hauling. '319 Its predict-ably nonvirtuous character is, indeed, the reason why it must be keptobeisant to the past constitutional mandates of the civically arousedpeople. On matters of constitutional moment, we want to hear fromPhilip sober.320

Ackerman contends that constitutional politics occurs outside aswell as within the formal processes established by article V for amend-ing the Constitution. He argues that when such constitutional politicsoccur, what they produce merits judicial recognition as a "structuralamendment." 321 A structural amendment results when "a sustainedperiod of extraordinary institutional conflict" confers "legitimacy" uponan evident change in constitutional understanding. 322

The New Deal period of overthrow of laissez-faire constitutional-ism - the progress from Lochner v. New York 323 to West Coast HotelCo. v. Parrish32 4 - is Ackerman's foremost example of both consti-tutional politics and structural amendment. It was a time of excep-tionally excited political events - including the enactment of NewDeal legislation, the resistance of the "old" Supreme Court, the Ad-ministration's perseverance in the face of judicial reprimand, the elec-toral mandate of 1936 (construed in light of the events preceding),and the judicial volteface of 1937. The Administration proposed newdepartures; the Court signaled to the country their constitutional sig-nificance; Congress and the people reconsidered the proposals, debatedthe merits, examined alternatives, and in the process clarified consti-tutional meanings. Finally the people decisively registered their will,and the concurrence of all three governmental departments was ob-tained.325

318 See id. at 1022-23, 1029.319 Id. at 1031.320 "Philip, Alexander's father, gave sentence against a prisoner, what time he was drowsy,

and seemed to give small attention. The prisoner, after sentence was pronounced, said: IAppeal. The king somewhat stirred, said: To whom do you appeal? The prisoner answered;From Philip when he gave no ear, to Philip when he shall give ear." F. McNA MRA, 2000FAtous LEGAL QUOTATIONS 26-27 (x967) (quoting F. BACON, APOTHEGMS NEW AND OLD,no. 158).

321 See Ackerman, supra note 65, at 1os1, IO56.322 See id. at 1053 (citing C. BLACK, THE PEOPLE AND THE COURT 56-57, 67 (1960)). For

Ackerman's view of the method by which the Court should take account of a structuralamendment, see pp. 64-65 below.

323 198 U.S. 45 (1905).124 300 U.S. 379 (1937).325 See Ackerman, supra note 65, at 1053-56. Ackerman says that the constitutional scheme

of separated powers worked to "[refine] the issues of high legal principle involved in the political

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Thus we see two earmarks of constitutional politics: first, a publicconcern of exceptional breadth, intensity, and duration, which maybe marked by the people's resort to irregular forms or procedures; andsecond, the people's persistence in spite of ordinarily conclusive defeatin legislative politics or in constitutional adjudication (or the people'selectoral endorsement of those who have thus persisted).

Ackerman believes that the two-track conception reflects the fram-ers' combination of republican aspiration and doubt about the people'scapacity for sustained public-spiritedness. It is their design for "econ-omi[zing] on virtue. '326 To that extent it depends on a normativeconception of citizenship coming straight from the republican tradi-tion.

I have already suggested that Ackerman's ultimate aim in hisresearch is to reinvigorate the concept of citizenship. 3 27 He aims atthe same time to relegitimate constitutional law. The entire projectis launched as a defense of Alexander Hamilton against AlexanderBickel, in a dispute over the democratic basis of judicial review. 328

According to Hamilton, the Constitution speaks the democratic willof the sovereign people, which binds both Congress and the courts. 329

Bickel objected that "the people" in that formulation is an "abstrac-tion" mystically obscuring the "reality" that the law under judicialscrutiny has been enacted by the actual representatives of the actualpeople. 330 Ackerman's first - and not at all bad - rejoinder is that"the people" are no less abstracted in congressional law-making thanin constitution-making. 3 3 1 That leaves him, however, in a time-bind:if the people have recently spoken through their congressional oracle,contradicting an older convention-oracular utterance, he must find areason why the more recent emanation should not prevail. 33 2

Ackerman argues that this "intertemporal difficulty"3 3 3 dissolves ifthe two media of popular will stand on different ontological levels.Thus his tactic is to discredit the congressional medium while accred-iting the constitutional-conventional one. He denies that "the people"are in any useful sense "in" Congress, proposing instead that Congress"represents" the people in the far more attenuated sense of "standingin" for them during their vacations into privacy - carrying on work-

conflict and thereby allow[] Americans to place a constitutional meaning upon a sustained seriesof electoral victories and legislative successes that is very different from the meaning ordinarilyattached to any single episode of normal politics." Id. at 1055-56.

326 Id. at 1031.327 See supra pp. 59-60.

328 See Ackerman, supra note 65, at 1013-14.

329 See THE FEDERALIST, supra note 9i, No. 78, at 525 (A. Hamilton).

330 A. BICKEL, supra note 64, at 16-17, quoted in Ackerman, supra note 65, at 1013.331 See Ackerman, supra note 65, at 1029.

332 See id. at 1045-47.333 Id. at 1046.

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aday government for them but in no way as them. 334 Conversely, herecalls for us the vividness of "the people out-of-doors 33 5 and plau-sibly suggests that the people are really present in their moments ofconstitutional excitement, not in their ordinary distraction. In a totalreversal of Bickel's view, Ackerman finally demystifies representa-tion:3 3 6 when the people are not active - actually and directly active

they are not there - "we" are not here - at all.Ackerman's two-track conception does go some distance towards

vindicating judicial review. The reviewing Court is the people's rep-resentative in the most straightforward sense, their commissioner to"prevent the abuse of the People's name in normal politics" by "stand-ins" who misrepresent themselves as the people by acting in contra-vention of the people's constitutionalized will. 3 3 7 Judicial interventionon these terms is not "ancestor worship," but rather the "present-oriented project" of giving to the actual people the opportunity to"modulate the democratic authority they accord to the elected repre-sentatives who speak in their name. '338

So far, Ackerman's model offers no assurance that the Court in-validating a statute as unconstitutional conveys the true meaning ofenacted "constitutional achievement[]. " 339 The question of legal inter-pretation remains. Ackerman starts his answer obliquely. He notesthat strained judicial readings of received constitutional texts give aidand comfort to "legal nihilism," by "playing so fast and loose with thetraditional disciplines of legal interpretation as to make the entirenotion of interpretation seem utterly fraudulent."3 40 He then offersthe notion of structural amendment as relief for this embarrassment.Only a "structural reinterpretation of the 1930's," he suggests, canavoid excessively strained readings of textually explicit, long-respectedconstitutional commitments respecting contract, property, and states'rights. 3 4 1 If we can see that a structural amendment occurred duringthe 1930's, then we can also see that those earlier constitutional com-mitments have more recently been "profoundly revised" by constitu-tional law-making. This recent law-making provides direct constitu-tional sanction for "the welfare state," which, therefore, we no longer

334 See id. at 1i29; see also M. SHAPIRO, FREEDOM OF SPEECH: THE SUPREME COURT ANDJUDICIAL REVIEW 17-25 (i966) (describing the arguably "undemocratic" nature of Congress andthe interests of its members).

335 "The people out-of-doors" are the people "outside of the legal representative institutions,"sometimes as mobs and sometimes as informal committees and conventions. G. WOOD, supranote 23o, at 320; see id. at 319-28; Ackerman, supra note 65, at so6o-6i & n.82.

336 See supra pp. 46, 51, 53-54.

337 Ackerman, supra note 65, at io3o.338 Id. at IO5O.339 Id. at 1043.340 Id. at 1070.341 Id. at 1070-71.

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need "save . . .at the cost of trivializing the process of legal interpre-tation. ,

342

This explanation is good as far as it goes, but the problem ofinterpretation so far remains untouched. What, after all, is the "re-vision"? What is its meaning? "Clearing historical rubble" throughrecognition of structural revision seems good but leaves us yet to givecontent to the "principles that do remain" as higher law.343 How doesthe Court make justifiable sense of the remaining constitutionalthemes? Ackerman's answer is that we have to:

[explore] the complex ways in which [all the remaining] themes havebeen transformed by ... new constitutional principles proclaimed inthe name of the People during the nineteenth and twentieth centu-ries .... We must organize into a coherent whole all the higher-lawprinciples enacted by the People in the course of two centuries ofconstitutional politics - most notably those advanced in response tothe very different constitutional crises engendered by the AmericanRevolution, the Civil War, and the Great Depression. 344

Although Ackerman does not so name it, he is proposing themethod of narrative as the key to legal interpretation. 345 Think of anindividual choosing a course of action, composing a current sense ofpersonal identity or character by integrating the multifarious episodesof a remembered past into one coherent personal "story." Now thinkof the political community, needing to make current sense of its lawin order to carry on with the next case, integrating the multifariousepisodes in its remembered legal past into the coherent normative"story" of a unified political "person." By so situating ourselves, orour community, in a particular history, we supply ourselves with theobjective or cognitive element required for ethical choice. Narrativeis a tool of self-knowledge, practical reason, self-government, andpositive freedom. It seems an entirely plausible and appealing pro-posal for jurisprudence, by no means peculiar to Ackerman amonglegal theorists, 346 and certainly not the special discovery of lawyers. 347

342 Id. at 1071.

343 Id. (emphasis in original).344 Id. (emphasis in original).345 See supra pp. 31-32.346 See, e.g., infra pp. 66-67 (discussing Ronald Dworkin's theory of legal interpretation).

As Robert Cover wrote:No set of legal institutions or prescriptions exists apart from the narratives that locate itand give it meaning. For every constitution there is an epic ....

Every prescription is insistent in its demand to be located in discourse - to besupplied with history and destiny, beginning and end, explanation and purpose ....[P]rescription, even when embodied in a legal text, [cannot] escape its origin and its endin experience, in the narratives that are the trajectories plotted upon material reality byour imaginations.

Cover, supra note i, at 4-5.347 See, e.g., A. MAcINTYRE, supra note 1o5, at 98.

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However, Ackerman's resort to the narrative method of interpre-tation raises, in the context of his particular project, some puzzlingquestions. Whose is the story being constructed? What ensures thatthere is only one story? Given that someone has to compose or selectthe story, who is that author? In this whole narrative process, whoand where are "we"?

Certainly the author is not "We the People" in anything like thedemystified sense that allows Ackerman his victory over Bickel. 348 Itwould be fantasy, not history, to imagine the People in the 193osconsciously or responsibly engaged in reintegrating, and thereby trans-forming, the meaning of all past constitutional events. Those pastevents were, after all, several and disconnected responses to "verydifferent constitutional crises, '349 at least as plausibly a severalty asa unity. Yes, one can say, and with force, that what matters, whatthe People "meant," lies not in what they thought or intended butwhat they said and did. 350 But what gives that proposition its forceis the sheer need for intelligibility, for integrity, as a condition ofjustifiable present action. In the final analysis, the People vanish,abstracted into a story written by none of us.

To be precise, we do not write the story unless we happen to bejustices. It is they who are finally envisioned as the active practicalreasoners and ethical self-governors. The Court at the last appearsnot as representative of the People's declared will 35 1 but as represen-tation and trace of the People's absent self-government. 35 2

348 See supra pp. 62-63.349 Ackerman, supra note 65, at 1071.

350 See R. DWORK1N, supra note 301, at 314-16, 322-24, 336-38.35 See supra p. 63.3S2 See Singer, supra note iii, at 339--40. Judicial construction of the People's will goes

"all the way down" to the People's willing this constructive role upon the judiciary. Id. at 330(relating a story about the world resting on the back of a turtle, and "it's turtles all the waydown"); see id. at 339-40; infra pp. 75-76. That self-government resides finally in the judiciaryis not, of course, Ackerman's declared message. His message is that the people are self-governingin moments of constitutional politics. Ackerman speaks of the framers "solving the ... problem[of] ... establishing a credible form of public-regarding discourse." Ackerman, supra note 65,at 5o49. But he does not, in the Storrs Lectures, seriously confront the difficulties of politicalself-government on a continental scale in modem, mass conditions. We get a picture of thepeople roused to intensity of public-regarding civic engagement but get no explanation of whatit might be about this mass experience that would make it self-government rather than domi-nation. Consider the case of the proposed equal rights amendment. No doubt the proposaloccasioned intense and widespread involvement and attention, and no doubt the talk was public-regarding in the sense of focusing on matters of public value and public law. Still the episodeseems to have been more one of ideological closure and manipulation, in the company of ordinarytactical politics, than of self-recognition and redirection through open and empathic intersubjec-tive encounter. See generally Rhode, Equal Rights in Retrospect, I LAw & INEQUALITY 1 (1983)(reviewing the history of the ERA campaign).

It does not help to be reminded that consensus is not practically attainable. See Ackerman,supra note 65, at 1049. That reminder fails to explain how antifederalists, say, would haveunderstood themselves as self-legislating or self-determining in the aftermath of ratification of a

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D. Whose Integrity?

The strange twist in Ackerman's Storrs Lectures - the migrationof self-government from the people to the Court - occurs at the pointat which the lectures resort to a narrativistic method of legal inter-pretation. 35 3 Although Ackerman commends such a method, he doesnot undertake systematic exposition or defense of it. A leading currentsource of such exposition and defense is Ronald Dworkin's Law'sEmpire.35 4 Consideration of Law's Empire confirms, I believe, a linkbetween the attraction of such theories and the judiciary's role inrepresenting to the community self-government in practice.

In Dworkin's conception, a legal claim or argument is an inter-pretation of the community's current law, viewed in its entirety andin historical setting. The claim "interpret[s] contemporary legal prac-tice seen as an unfolding political narrative. '355 Dworkin calls thisconception "law as integrity,"35 6 and for him integrity in law meansfitting current legal decisions into the whole prior history of the com-munity treated as a single normative subject or ethical agency. Legalintegrity requires that the judge "identify legal rights and duties, sofar as possible, on the assumption that they were all created by asingle author - the community personified - expressing a coherentconception of justice and fairness." 35 7

Dworkin's account holds that legal propositions are true "if theyfigure in or follow from the principles of justice, fairness, and proce-dural due process that provide the best constructive interpretation ofthe community's legal practice. '358 "Best," in this formulation, con-tains an element of judicial subjectivity - the judge's own politicalvision - as well as of "fit" with the given legal data. 35 9 Dworkin

Constitution expressly overriding what many of them considered to be the conditions of theirown future self-government. See H. STORING, supra note 75, at 5, 7-8, 10, 48-52. I do notdeny the possibility. I only say that Ackerman does not in his Storrs Lectures explain it orexplore its conditions. It is certainly far easier to envision self-government in the judiciary.Perhaps that is why we do it.

353 See supra pp. 64-65.354 Law's Empire, cited at note 3oi above, is Dworkin's newest and most systematic statement

of a theory he has been developing over many years. See also R. DWORKIN, A MATTER OFPRINCIPLE (1985); R. DWORKIN, TAKING RIGHTS SERIOUSLY (1977).

355 R. DWORKIN, supra note 301, at 225.356 Id. at 94, 225.

357 Id. at 225.358 Id. That is, the interpretation that best justifies the community's use of collective force.

See id. at 93, 109-10, 127, 151, I9o.359 Interpretive responsibility reaches all the way down to the question of what counts as a

part of the law to be interpreted. The story itself provides its only grounding:Our culture presents us with legal institutions and with the idea that they form a system.

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typically envisions the judge confronted with a "hard case" - forexample, a case of two intersecting lines of precedent, or one thatappears to be governed by a new, vague, or ambiguous statutoryformula that could plausibly be read in either party's favor. His theoryadvises the judge to place the problematic materials in the context ofthe community's whole prior legal history.360 This history includesconstitutional and statutory texts, judicial decisions applying thesetexts, common law decisions, secondary explanatory matter such asjudicial opinions and legislative history, and all the community'sevolving paradigms for relating and ordering such materials - forexample, by time of origin or hierarchical level of issuing authority.The judge is then supposed to derive from this context the coherentset of normative principles that makes the "best" sense of its contentsas a whole.

Dworkin says that a judge approaching the task of legal interpre-tation in this narrative spirit will find the experience one of bothpersonally responsible choice and extra-personal constraint. The ele-ment of choice occurs because no explanatory set of principles will fitthe data perfectly. There are, therefore, likely to be several that fitwell enough to seem competitive. In selecting among these, the judgemust consider how well each set of principles justifies - in a sub-stantive sense - the community's "moral authority to assume anddeploy a monopoly of coercive force," 3 61 because that is the projectin which the judge is engaged on the community's behalf. Suchconsideration necessarily draws upon the judge's own, personal, nor-mative outlook. 3 62

Even so, says Dworkin, from this judge's internal, experientialstandpoint there will be, as it were, a "right answer" to the question.Dworkin draws an analogy to a literary critic engaged in interpretationof a richly suggestive novel. The critic is not "free" to give the bookany reading at all, but rather seeks a reading that makes it the bestthat it can be for a reader in the critic's own historical and culturalsituation. Such a critic will experience a feeling of constraint, 363 andso will the judge following Dworkin's instruction. Dworkin finds

The question which features they have, in virtue of which they combine as a distinctlylegal system, is part of the ... controversial and uncertain process of assigning meaningto what we find, not a given of the preinterpretive structure.

R. DWORKIN, supra note 301, at 9.360 See id. at 225.361 Id. at 188.362 "Interpretation of . .. social practices ... is ... essentially concerned with purpose

.... The purposes in play are not fundamentally those of some author but of the interpreter."Id. at 52.

363 See id. at 234.

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value in this constraint - or rather in the resulting combination ofresponsible choice and constraint.364 In it lies his notion of "integrity."

As Dworkin explains, integrity in law

commands a horizontal . . . consistency of principle across the rangeof the legal standards the community now enforces. It insists that thelaw - the rights and duties that flow from past collective decisionsand for that reason license or require coercion - contains not onlythe narrow explicit content of these decisions but also, more broadly,the scheme of principles necessary to justify them. 365

This conception of legal integrity366 corresponds closely to the morefamiliar one of personal integrity. An individual shows integrity (or,we might say, self-government) by acting "according to convictionsthat inform and shape [the individual's life] as a whole, rather thancapriciously or whimsically." 367 An important value of this trait isdialogic: it allows one person to recognize another's acts as

expressing a conception of fairness or justice or decency even whenwe do not endorse that [particular] conception ourselves. This abilityis an important part of our more general ability to treat others withrespect, and it is therefore a prerequisite of civilization. 368

Legal integrity, says Dworkin, has a like "expressive value," inevidence "when people in good faith try to treat one another in a wayappropriate to common membership in a community . . . and to seeeach other as making this attempt, even when they disagree aboutexactly what integrity requires in particular circumstances." 369 Legalintegrity is, like personal integrity, an implication of normative con-versation.

Moreover, just as personal integrity implies self-government, legalintegrity is, according to Dworkin, a condition of the kind of freedomenvisioned by Rousseau and Kant, freedom achieved through "self-legislation" in a social setting. 370 This condition holds in the firstplace because "a citizen cannot treat himself as the author of a col-

364 "Creative interpretation, on the constructive view, is a matter of interaction between

purpose and object." Id. at 52.365 Id. at 227. Thus interpretation's aim is not to "recapture . . . for present law, the ideals

or practical purposes of the politicians who first created it. It aims rather to justify what they

did ... in an overall story worth telling now .... ." Id.366 1 use the expression "legal integrity" to cover what Dworkin calls both "law as integrity"

and "political integrity," depending on his context. He draws no significant distinction betweenthese notions and readily runs them together. See, e.g., id. at 166-67.

367 Id. at 66.

369 Id.369 Id. at i9o.370 See id. at i89; supra pp. 26-27.

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lection of laws that are inconsistent in principle."'3 7 t It is true in thesecond place because of the demand for generality exerted by the ideaof political self-government:3 72 legal integrity "insists that each citizenmust accept demands on him, and may make demands on others, thatshare and extend the moral dimension of any explicit political deci-sions."3 73 The upshot of these considerations is that "integrity ...fuses citizens' moral and political lives. '374

In sum, Dworkin's narrative-constructive model of legal interpre-tation is part of an account of political self-government through whichsocially situated individuals realize moral freedom or personal integ-rity.

3 75

The question is: whose integrity? Dworkin says that legal integrity"asks the good citizen, deciding how to treat his neighbor when theirinterests conflict, to interpret the common scheme of justice to whichthey are both committed."376 But in what sense is that true? It isnot, after all, citizens who are immediately called upon for the workof legal integration. The narrativistic theory of law as integrity seemsa vindication of the moral freedom of judges377 - displaced, in Dwor-kin's account, onto the citizens.

Dworkin is aware of this apparent displacement. He says that thecitizens share in the freedom insofar as they "have reason" to regardthemselves as "in some sense the authors of the political decisionsmade by [their] governors. '"378 He argues that they do have suchreason: members of an associative group accept and feel responsibilityfor the group's actions, meaning actions duly taken in the group'sname. 379 In order to see whether this sort of argument can overcomethe displacement difficulty, we need to take a step backward.

371 R. DWORKIN, supra note 301, at i89.372 See supra p. 27.373 R. DWORKIN, supra note 3oi, at 189.374 Id.375 Thus understood, Dworkin's model of legal interpretation differs from that of dialogic

practical reason adumbrated above at PP. 31-33. Dworkin's model is one of construction andintegration, rather than of conversation and plurality. See Van Meter, Adjudication As aNormative Activity: An Essay on Legal Reasoning 120-28 (unpublished draft on file with theauthor); infra note 408 and accompanying text.

376 R. DWORKIN, supra note 301, at i89-9o. He further says that the ideal of legal integritymakes political obligation "a protestant idea: fidelity to a scheme of principle each citizen has aresponsibility to identify, ultimately for himself, as his community's scheme." Id. at x9o.

377 Dworkin implies that a judicial interpretation of the community's practice offers not"neutral reports" about what the members at large think they do, but "claims about [the members'practice] competitive with theirs." Id. at 64; cf. Cover, supra note i, at 57 n.158 (suggestingthat judicial interpretations of the law are not privileged vis-h-vis those of various communities).

378 R. DWORKIN, supra note 301, at 189. Dworkin's context makes clear that by "governors"he means both legislators and judges. See id. at 167.

379 See id. at 168-75.

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Dworkin initially proposed his account of judicial decision in hardcases in order to show that disputed claims of legal right always oralmost always have right answers, in principle, even in the hardestcases. 380 Readers both accepting 381 and skeptical382 took him to beaddressing a question of political legitimacy - that of the justificationof state, including judicial coercion; judicial decisions not demonstr-ably required by some form of generally recognized authority cannoteasily be justified by reference to either expressions of democratic willor transcendent principles of right.

Such a construal of his intention left Dworkin open to the objectionthat, as observed from the standpoint of those expected to submit tojudicial authority, there is no detectable difference between a regimein-which judges try to conform their decisions to "the best constructiveinterpretation of the community's legal practice"38 3 and one in whichthey feel free to decide "on the basis of their favored ideology. '384

The root of this objective ambiguity is the personal visionary elementwith which the judge must combine assessments of "fit," in arrivingat a "best" constructive interpretation. 385 The authoritative legal ma-terials, it is said, will contain potentially conflicting statements ofdoctrine and principle, reflecting whatever ideological conflicts aretypical or salient in the community. Thus "a judge who conscien-tiously consults the materials [will] find his favored ideology in somesubstantial portion of the settled law and conclude that it [is] thesoundest theory of the law. 386

As against Law's Empire, the complaint of objective ambiguity ismisdirected. 387 We need not now decide whether Dworkin ever in-

380 See, e.g., R. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 354, at 81-84.381 See, e.g., Michelman, Norms and Normativity in the Economic Theory of Law, 62 MINN.

L. REV. 1015, 1043-45 (1978).382 See, e.g., Altman, Legal Realism, Critical Legal Studies, and Dworkin, 15 PHIL. & PUB.

AFF. 205, 232-34 (1986).383 R. DWORKIN, supra note 301, at 225.384 Altman, supra note 382, at 234. The objection is attributed to Critical Legal Studies, or

"CLS." See id. at 230.385 See supra p. 67.386 Altman, supra note 382, at 230-31. Compare this with Dworkin's view:[T]he dimensions of fit and substance - and of different aspects of substance - are inthe last analysis all responsive to [the judge's] political judgment. His convictions aboutfit ... are political, not mechanical.... When an interpretation meets the threshold,remaining defects of fit may be compensated ... if the principles of that interpretationare particularly attractive, because then he sets off the community's infrequent lapses inrespecting these principles against its virtue in observing them.

R. DWORKIN, supra note 3oi, at 257.387 Dworkin enters no strong denial of the complaint's descriptive truth. He notes some

reasons for expecting a degree, but only a degree, of convergence among decisions of anycontemporary cohort of judges. See R. DWORKIN, supra note 301, at 88-89. But he also writeswarmly of the utopian dreams of "legal philosophers," of which there may be many that "respectintegrity" although "the dreams are competitive, the visions are different, choices must be made

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tended the right-answer thesis to apply to the judiciary collectively,as seen from the standpoint of a community observer. 388 Law's Em-pire makes clear that the thesis is now meant to apply to the "internal"standpoint, that is, the individual judge's personal standpoint, fromwhich the decision is made and experienced. 38 9

Focusing exclusively on the judicial internal standpoint is crucialto the methodological program of Law's Empire.390 In the narrowinterest of defending something like a right-answer thesis, one can seewhy. Less clear is what larger claim the thesis can support, if castinto so strictly internalized a form. It cannot be legitimation in theold straightforward sense. 3 9 1 No doubt the experiential constraint mayhave value for the judge, just as any experience of choosing rightlyrather than randomly may have a sovereign moral value for thechooser. But this does not explain what value it has for the commu-nity, a value Dworkin urgently maintains that it has.

Dworkin's answer is still legitimacy, the justification of state coer-cion and explanation of political obligation. 3 92 He says that a com-munity ought to "[accept] integrity as a [central] political virtue" be-cause doing so "provides [the best] defense of political legitimacy.) 3 93

"Integrity" means here what it means throughout: communal commit-ment to good faith extension to the next case - yours or mine - ofthe body of justificatory principles immanent in the entirety of thecommunity's practice to date in the exercise of coercive force againstits members. 3 94 The community is committed to treating its members"according to convictions that inform and shape [its life] as a whole,rather than capriciously or whimsically. "3 95

One sees how a credible, communal commitment to integrity maycarry practical benefits that attract the loyalties of members of thecommunity. Most obviously, it gives members some useful basis forplanning and reliance, even allowing for what is from the external

- large choices by statesmen in high judicial and legislative office, smaller choices by thosewhose decisions are more circumscribed and immediate." Id. at 408-09.

388 See id. at viii-ix.389 See, e.g., id. at io-ii, 13-15, 235-36.39o See supra pp. 67-68.391 See supra p. 70.392 See R. DWORKIN, supra note 301, at 190-92.

393 Id. at 216. Dworkin continues: "This defense is possible in such a community becausea general commitment to integrity expresses a concern by each for all that is sufficiently special,personal, pervasive, and egalitarian to ground communal obligations according to standards forcommunal obligation we elsewhere accept." Id. "Elsewhere" refers, for example, to the family.The quoted statement recapitulates an extended, subtle, and very interesting philosophicalanalysis of the elements of associative community in general and political community in partic-ular, and of the general and special grounds of communal obligation. See id. at 195-2,5.Present purposes do not require elaboration of the argument.

394 See supra p. 68.395 R. DWORKIN, supra note 301, at 166.

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standpoint an irreducible subjective element in adjudication. ButDworkin is plainly more interested in the "expressive" than in thefunctional value of legal integrity. Commitment to legal integrity"expresses a concern by each for all that is sufficiently special, per-sonal, pervasive, and egalitarian to ground communal obligations." 396

Dworkin says his argument relies on personification. 397 Law, heproposes, speaks for "the community personified." 398 The commu-nity's integrity is the law's integrity, as legislators make and judgesconstrue it. The law's integrity expresses the idea that "the communityas a whole has obligations of impartiality toward its members, andthat officials act as agents for the community in acquitting that re-sponsibility."399

There would be nothing remarkable in this personification if itspremise were that judicial decisions, in the aggregate, displayed anobjective integrity to observers in the community. With that premise,indeed, we could dispense with personification. The valued communalexpression would simply consist of members' support of a legal orderhaving observable, aggregate integrity. That, however, is not thepremise. That premise would have required a defense of the objectiveright-answer thesis, a defense of the thesis from the external observer'sstandpoint. This defense Dworkin not only does not supply, but alsodeliberately sets outside his entire project as beside the point. Withonly "internal" right answers, there is integrity, but it comes encasedwithin each separate act of adjudication. Good judges may haveintegrity. Good decisions may have integrity. As to the law, integrityseems neither here nor there, and the same holds for whatever com-munity the law represents.

There are not one but two puzzles here. There is the one we havejust been considering, of why Dworkin should think the community'sintegrity is represented by an objectively plural law. There is anotherwe noticed earlier, of why Dworkin should be investing anything inthe internal-subjective version of the right-answer thesis. If the nar-rativistic theory of legal interpretation is descriptively true, then theinternal right-answer thesis is true. But what is its importance?

As often when puzzles seem linked, the linkage of these two sug-gests their joint solution. The linkage here suggests two conclusions.First, the virtue of integrity is in the judge, not in the law, and itsvalue to the community is representational: the judge represents in-tegrity - self-government - to the community, not of it. Second,the integrity - the self-government - of the judge is constituted bythe conjunction in the judicial act, as experienced, of cognitive and

396 Id. at 216.

397 See id. at 167-68.398 Id. at 225.

399 Id. at 175.

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volitional elements in tension. If and only if the subjective right-answer thesis is true, judges represent practical reason to the com-munity.

Dworkin's own account of the matter comes close to suggestingwhat I have said:

We want our officials to treat us as tied together in an association ofprinciple, and we want this for reasons that do not depend on anyidentity of conviction among these officials, either about fit or aboutthe more substantive principles an interpretation engages. Our reasonsendure when judges disagree, at least in detail, about the best inter-pretation of the community's political order, because each judge stillconfirms and reinforces the principled character of our association bystriving, in spite of the disagreement, to reach his own opinion insteadof turning to the usually simpler task of fresh legislation. 400

In the end, Dworkin does not appear to explain how it can bethat a judge "confirm[s] . . . the principled character of our associa-tion" by striving each "to reach his own opinion." It seems to me theanswer finally must sound in virtual representation. The judge, asDworkin envisions him, represents by his own self-government ourmissing self-government, by his own practical reason our missingdialogue. What he thereby confirms is possibility. Could that be whatwe value?

IV. SUMMARY AND CONCLUDING OBSERVATIONS

In this Foreword I have offered for consideration the followingthoughts:

First, the object of self-government is freedom. That object liespartly in constituting the governed as sovereign over their governors.But freedom's connection to self-government does not lie only, orultimately, in the protective function of popular sovereignty, invalu-able though that function is. Freedom in its fullest sense is self-government, active engagement in a self-directive process that is cog-nitive as well as volitional, hence (given our social constitutions andsituations) public as well as private, political as well as personal.

Second, freedom understood as self-government involves constantmediations between objectivity and subjectivity, universe and context,sameness and difference, empire and paideia - mediations that areextremely difficult to articulate in theory and to envision in practice.Clarifying and explaining the requisite mediations, or reconciliations,is a chief project of contemporary social theory. Several lines ofinvestigation seem to converge on some characteristic notions of dia-logue and practical reason. The same mediations are as crucial, and

400 R. DWORdIN, supra note 3o, at 264.

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as problematic, in the specific enterprise of law as in the more generalpursuit of freedom of which the legal enterprise is presumably a part.It is possible to see how the responsive notions of dialogue and prac-tical reason might characterize the work of judges. One can usefullydescribe, and significantly criticize, particular judicial performancesin terms of their apparent degrees of commitment to the pursuit ofmediative practical reason through normative dialogue.

Third, on a certain reading, the civic-republican tradition, cur-rently resurgent in American constitutional-legal thought, offers his-torical validation for the ideal of freedom as self-government realizedthrough politics, along with visionary resources for critical compre-hension of the ideal and of specific institutional manifestations of it.If this positive-libertarian ideal is highly valued, then these observa-tions may help explain the tradition's stubborn hold on a place inconstitutional imagination - despite the historical defeat of its anti-federalist defenders, despite its obvious impracticality in the nationalconstitutional setting, and despite the unattractive or ominous featuresthat the tradition also notoriously incorporates. Conversely, the tra-dition's persistence despite these adverse factors suggests that positivepublic freedom - active political self-government - is indeed anideal more highly valued than actual constitutional practice mightsuggest.

40

Fourth, as a result, the courts, and especially the Supreme Court,seem to take on as one of their ascribed functions the modeling ofactive self-government that citizens find practically beyond reach.Unable as a nation to practice our own self-government (in the full,positive sense), we - or at any rate we of "the reasoning class" 40 2 -

can at least identify with the judiciary's as we idealistically constructit.

This sounds like a pathology of court-fetishism, and it may bethat. But I want to suggest more optimistic possibilities in the ideaof the Court as a bastion of (its own) self-government.

In the pessimistic view - the one that informs the doctrine ofjudicial counter-majoritarianism 4 3 - the country's total supply ofrulership, or political freedom, is fixed. Whatever share we cede tothe Court we deny to ourselves. We thus hand over to the Court notonly the safekeeping of our negative liberty, but also our positiveliberty itself.40 4 This view of the matter, we are now in a position to

401 See Shalhope, supra note 257, at 355-56.402 J. ELY, supra note 95, at 59 & n.**.403 See supra p. 62.404

"T]he exercise of judicial review... is always attended with a serious evil, namely, thatthe correction of legislative mistakes comes from the outside, and the people thus losethe political experience, and the moral education and stimulus that come from fightingthe question out in the ordinary way .... [T]he tendency of a common and easy resort

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see, involves three major confusions: of positive with negative free-dom, of the United States of America with the canton of Geneva, andof the people with the legislative and executive branches.

If freedom consisted simply of doing (and commanding) as onewill, then indeed the relation between one agent's freedom and anoth-er's - between the Court's freedom and the country's (assuming forthe moment that the country and the Congress are one and the same)- would be the subtractive one supposed by counter-majoritarianpessimism; the freedoms would sometimes collide, and when they didonly one could prevail. But if freedom consists of socially situatedself-direction - that is, self-direction by norms cognizant of fellowshipwith equally self-directing others - then the relation between oneagent's freedom and another's is additive: one realizes one's own onlyby confirming that of the others. This seems to hold no less for ajudge than for any other agent.

For a citizen of Geneva it was perhaps imaginable that positivefreedom could be realized for everyone through direct-democratic self-government, a sovereignless civic process of ruling and being ruled,with no place for legal authority beyond the process itself. But forcitizens of the United States, national politics are not imaginably thearena of self-government in its positive, freedom-giving sense. As aconstituted nation we are, it seems, necessarily committed to thesovereign separation of rulers from ruled. We ought not to deny theseparation; government-fetishism is no better than court-fetishism.Congress is not us. The President is not us. The Air Force is notus. "We" are not "in" those bodies. Their determinations are not ourself-government. Judges overriding those determinations do not,therefore, necessarily subtract anything from our freedom, althoughthe judges also, obviously, are not us. Their actions may augmentour freedom. As usual, it all depends. One thing it depends on, Ibelieve, is the commitment of judges to the process of their own self-government.

Citizens of a sovereign state owe respect to its authority, as dulyexpressed in law - not absolute blind obedience, of course, but strongpresumptive respect. That is the least it can mean to speak of thestate as sovereign. Justices engaged in adjudication and judicial re-view are not for this purpose citizens; rather, they are organs of thestate, the ultimate oracles of its law.405 Although this judicial officeitself is a judicial construction, 40 6 arguments like Ackerman's in The

to this great function [is] to dwarf the political capacity of the people, and to deaden itssense of moral responsibility."

J. THAYER, JOHN MARSHALL io6-07 (1901).405 See Marbury v. Madison, 5 U.S. (i Cranch) 137 (1803).406 See, e.g., Van AIstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1, 16-

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Storrs Lectures and Dworkin's in Law's Empire suggest strongly itsnecessity if there is to be law at all.40 7 It follows that the justicescannot owe deference to any other legal authority. The law and itsapplications are their responsibility.

Of course this is not to say that the justices are free to set atnaught congressional enactments or Air Force regulations. Judicialself-government, like all self-government, can occur only within anomos, a cognizable normative universe that makes integrity conceiv-able. In our judicial nomos there are strong norms of popular sov-ereignty, intragovernmental division of responsibility, and justice toparties - all of which demand attention to statutes, regulations,constitutional texts, precedents, and other embodiments of history.But attention cannot mean deference, or talismanic invocation ofauthority. The norm of justice to parties itself commands that noother norm should ever take a form that preempts questions or ex-empts from reason-giving. Every norm, every time, requires expla-nation and justification in context. As we have seen, the task callsfor practical reason, and practical reason involves dialogue. WhenJustice O'Connor asks for a reason to believe that any Air Forceinterest is jeopardized by outlawing Goldman's yarmulke, it is theCourt's obligation to answer with something other than a reference to"professional judgment," which itself stands mute in response to thedemand for a reason. The "rule" of deference to military judgmentis no more sacrosanct than any other norm. Every application mustbe justified in context, with reasons one can accept, as applied to thecase at hand.

This brings us, finally, to what is lacking in Ronald Dworkin'sconception of law as (judicial) integrity, even on my most optimisticreconstruction. What is lacking is dialogue. Hercules, Dworkin'smythic judge, is a loner. He is much too heroic. His narrativeconstructions are monologues. He converses with no one, exceptthrough books. He has no encounters. He meets no otherness. Noth-ing shakes him up. No interlocutor violates the inevitable insularityof his experience and outlook. Hercules is just a man, after all. Heis not the whole community. No one man or woman could be that.

Dworkin has produced an apotheosis of appellate judging withoutattention to what seems the most universal and striking institutionalcharacteristic of the appellate bench, its plurality.40 8 We ought to

407 See supra pp. 64-65, 68-69.408 This omission does not appear to be accidental. See R. DWOPxN, supra note 301, at

52 (promising a defense of the proposition that "creative interpretation is not conversational butconstructive ... a matter of imposing purpose on [a] ... practice in order to make it the bestpossible example" of its kind); id. at 58 (linking the value of "the shock of recognition" with theidea of "a conversation with oneself").

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t9861 THE SUPREME COURT - FOREWORD 77

consider what that plurality is "for." My suggestion is that it is fordialogue, in support of judicial practical reason, as an aspect of ju-dicial self-government, in the interest of our freedom. There is amessage there for the politics of judicial appointments, not to mentionfor the politics of law.


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