100 Harv LRev 4

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THE SUPREME COURT 1985 TERM

FOREWORD: TRACES OF SELF-GOVERNMENT
Frank I. Michelman*
The commitment to a jurisgenerative process that does not defer to the violence of administration is the judge's only hope of partially extricating himself from the violence of the state. -Robert Cover1 That which was reason in the debate of a commonwealth, being brought
forth by the result, . . . must be law . .. Again, if the liberty of a man
consists in the empire of his reason ... then the liberty of a commonwealth
consists in the empire of her laws . . . ; and these I conceive to be the
principles upon which Aristotle and Livy ... have grounded their assertion that "a commonwealth is an empire of laws and not of men." -James Harrington
2
* Professor of Law, Harvard Law School. I thank Martha Minow for many helpful suggestions. 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 scholarship could scarcely have suffered a more devastating loss. As a model of erudition in the service of imagination, of wisdom in the service of commitment, Bob Cover had no match. Our own friendship 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 tragic conflict, along with a rich and evocative language with which to comprehend that epic. The conflict he saw was between the "world-creating" jural immanence of the unified concrete community and the "world-maintaining" jural transcendence of the diversified abstract state. I explore 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 remembrance is almost certainly the proximate source of our own credal "government of laws and not of 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 as defining a republic "to be a government of laws, and not of men").
HeinOnline -- 100 Harv. L. Rev. 4 1986-1987
1986]
THE SUPREME COURT -
FOREWORD
I. PROLOGUE: RULE AND REASON

3 Force regulations prescribe uniforms on duty. The uniform L does not include a yarmulke. In fact, one cannot be in uniform indoors with a hat on, any sort of hat.4 Commanders may at their discretion 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 obliga5 tion. Simcha Goldman, an Orthodox Jew and ordained rabbi, entered the Air Force by way of an armed forces scholarship program through which he both received professional training in psychology and assumed a subsequent active-duty obligation. He went on active duty at March Air Force Base in California, a commissioned officer serving as a clinical psychologist at a base hospital. For many years he always 6 wore a yarmulke on duty, without incident. Eventually, Goldman's commander ordered him not to wear his yarmulke while on duty at the hospital. Goldman's resistance earned him a letter of reprimand, a recommendation against extension of his term of service, and a threat of court-martial proceedings. Goldman sued the Secretary of Defense and others, claiming that to prevent him from wearing his yarmulke in these circumstances or to punish him for doing so violated his first amendment right of religious liberty. 7 The result was last Term's decision in Goldman v. Weinberger. Goldman's suit falls into the broad class of cases in which uniform application of regulatory rules (or of rules conditioning receipt of public benefits) is challenged by a group of religious observers for whom the rules cause special problems of conflict with religious obligation. In these cases, the Court is asked, in the name of the first amendment, 8 to carve out special exemptions for the objectors. 9
AIR
3 The Regulations "describe in minute detail all of the various items of apparel that must be worn 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 religious ceremonies." Id. In addition, commanders may at their discretion permit visible religious apparel, including headgear, in designated living quarters. See id. S See Brief for the Petitioner at 5, Goldman (No. 84-,097); cf. Defendant's Response to Plaintiff's Request for Admissions No. 5, Joint Appendix at 146, Goldman (No. 84-1097) (noting that keeping the head covered at all times is a "well-established religious tradition and practice among 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 the free exercise thereof. . . ." U.S. CONST. amend. I. 9 See, e.g., Bowen v. Roy, io6 S. Ct. 2547 (1986) (considering but not resolving whether Abenaki parents may be required as a condition of receiving welfare benefits to furnish their child'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 the objector's particular demand for unburdened religious observance and the state's general regulatory objective, but also a deeper problem of religious neutrality. A judicial decision for the objector will require the regulator either to withdraw entirely the requirement in question or to discriminate among citizens on the basis of religion.10 Prior to deciding Goldman's case, the Court on three occasions had ruled in favor of religious objectors seeking regulatory exemption on first amendment grounds." In so doing, the Court had fashioned a practice of examining closely the government's asserted reasons for insisting on remorseless application of its rule to the religious objector. It had required the regulating authority to show both "that an unusually important interest [was] at stake," and "that granting the requested exemption [would] do substantial harm to that interest."12 3 The standard of review was of the type known as "strict scrutiny.' In Goldman's case a sharply divided Court withheld strict scrutiny and rejected his clalm. 14 Justice Rehnquist's opinion for the Court did 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 security tax, despite the conflict with the Amish religious commitment that the Amish community provide for its own elderly); Thomas v. Review Bd., 450 U.S. 707 (i98i) (holding that a state unemployment 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 produce weapons in violation of religious scruples); Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that a compulsory school-attendance law may not be applied to Amish parents, because it contradicts the Amish religious commitment to informal communal education and opposition to secular values); Sherbert v. Verer, 374 U.S. 398 (1963) (holding that a Seventh-Day Adventist must be exempted from a state's requirement of availability for Saturday work as a condition of receiving unemployment benefits); Braunfeld v. Brown, 366 U.S 599 (i96i) (applying a Sunday closing 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 religious exemption from a general tax law was "essential to accomplish an overriding governmental interest." Lee, 455 U.S. at 257-58. In a fifth case, decided last Term after Goldman, five Justices 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 dissenting in part), 2169 (White, J., dissenting). 13See generally L. TRIBE, supra note Io, 14-io, at 851-59 (describing strict scrutiny in earlier religious-exemption cases); Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARv. 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 a majority 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 filed dissenting opinions.
1986]
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Rather, it held strict scrutiny inapplicable to military regulations. It endorsed a doctrine of extraordinary judicial deference "to the professional judgment of military authorities concerning the relative importance of a particular military interest,"' 5 particularly in matters of 16 discipline, even when freedom of individual expression is at stake. Deference in this case did not quite mean no review. The Court reported itself satisfied that the line the regulations drew respecting nonuniform items of religious apparel, between the visible and the nonvisible, "reasonably and evenhandedly regulates dress in the interest of the military's perceived need for uniformity."1 7 Beyond approving the "nonvisible" criterion for permitted deviations, the Court simply accepted the "considered judgment" of military professionals that uniformity of dress is very important to the mission of the Air Force. In the professionals' view, uniformity of dress "encourages the subordination of personal preferences and identities in favor of the overall group mission"; it fosters "a sense of hierarchical unity" and
18 develops "necessary habits of discipline . . .in advance of trouble."
The Court was apparently untroubled that the Air Force offered no detailed or concrete evidence to support its alleged interest whereas Goldman's asserted interest was obvious and uncontested. On Goldman's side was clear evidence of a serious burden to his enjoyment
Is Id.
16
at 1313. The opinion drew upon prior authority as follows:
[W]e have repeatedly held that "the military is, by necessity, a specialized society separate from civilian society." . . . "[T]he military must insist upon a respect for duty and a discipline without counterpart in civilian life," . . . in order to prepare for and perform its vital role .... The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps .... The essence of military service "is the subordination of the desires and interests 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 prior decisions, 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 prior approval 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 for criticizing army personnel and policy); Orloff v. Willoughby, 345 U.S. 83 (I953) (holding that a physician inducted under the Doctors' Draft Act was not entitled to commissioned-officer status which was denied him because he claimed fifth amendment privilege rather than disclose political association). None of these cases posed or even approached a problem of forcing a serviceman to choose between military discipline and abandonment of continuing, daily, obligatory religious observance. 17 Goldman, io6 S. Ct. at 1314. 18 Id. at 1313. The Court further affirmed the military's need for "'virtually reflex'" compliance 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 performance of religious obligation and punishment for violation of military orders. On the side of the Air Force, there were only the bare declarations of professional judgment to show that dress codes in fact serve the disciplinary and morale-building objectives claimed for them. More particularly, there was no evidence that the wearing of yarmulkes had threatened discipline or esprit, or was likely to do so. Of the five opinions filed in the case, only Justice Rehnquist's for the Court seems preoccupied with the question of the judiciary's proper posture towards the military. Justice Stevens' concurrence placed considerably less weight on special deference to military authority. 19 The dissents of Justices Brennan and Blackmun conceded deference, at least arguendo, but contended, even so, that the Court must demand of the military some minimally credible reason to justify a serious imposition on religious devotion or expression and that in this case none was produced. Justice O'Connor's dissent applied strict scrutiny. What is most striking about the concurring opinion of Justice Stevens and the dissenting opinions of Justices Brennan, Blackmun, and O'Connor is the focus they share on the problem of the relation 20 between legal formality and the reconciliation of social differences. Each struggled with conflicting impulses toward uniform application of law and responsiveness to individual situations. In speaking to this dilemma, the Justices addressed more fundamental questions about what counts as a good reason for a legal result. We may approach those questions by considering each opinion in turn, in the order in which they are officially reported.
STEVENS: Goldman presents an appealing case for an exception to the rules. 2 ' His station and duties are such that allowing him "a modest departure from the uniform regulation creates almost no danger of impairment of the Air Force's military mission. '2 2 What, then, forbids such a departure? Neutrality does, and the rule of law. 19The "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 a case 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 highly general features (such as the "visibility" of a nonuniform item of apparel) and in that sense abstracts cases from their concrete contexts (like a law student's "case abstract"). See generally Kennedy, Legal Formality, 2 J. LEG. STUD. 35, (1973) (discussing generally the aims and problems of legal formality). 21"His devotion ... is ... apparent. The yarmulke is a familiar and accepted sight. In addition 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.
1986]
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We have to accept as "legitimate and rational" the professionally attested interest of the Air Force in uniformity of dress "itself. '23 Not every request for deviation can be granted. We must, then, consider how such requests are to be appraised. Justice Brennan thinks they should be evaluated as they arise, under a reasonable standard based on "'functional utility, health and safety considerations, and the goal of a polished, professional appearance.' "24 He says that Goldman's yarmulke does not present "'so extreme, so unusual, or so faddish an image that public confidence in his ability to perform his duties will be destroyed."' 25 That is true; Justice Brennan's test would indeed produce a happy result for Goldman. But then what do we say about a Sikh's turban, or a Rastafarian's dreadlock? If exceptions from dress code regulations are to be granted on the basis of a multifactored test such as that proposed by Justice BRENNAN, inevitably the decisionmaker's evaluation of the character and sincerity of the requestor's faith - as well as the probable reaction of the majority to the favored treatment of that faith - will play a critical part in the decision. For the difference between a turban or a dreadlock on the one hand, and a yarmulke on the other, is not merely a difference in "appearance" - it is also the difference between a Sikh or a Rastafarian, on the one hand, and an Orthodox Jew on the other. The Air Force has no business drawing distinctions between such persons when it is enforcing commands of universal application. As the Court demonstrates, the rule that is challenged in this case is based on a neutral, completely objective standard - visibility .... An exception for yarmulkes would represent a fundamental departure 26
from the true principle of uniformity that supports that rule.
[By objectivity in a regulatory standard, Justice Stevens evidently means that the standard's application is relatively automatic and incontestable, calling for no debatable evaluation of the concrete interests 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 "rules that 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 the rules in the dress code which should be tested by a functional standard, Justice Stevens apparently read him as proposing that each application of a rule, that is, each denial of a request for deviation, should be so tested. Justice Stevens' (mis)reading permits him to charge Justice 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 at his 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 culturally meaningful personal or social factors that are not obviously and di27 rectly related to functional, regulatory aims. ] 28 BRENNAN: "Uniformity" of treatment under the Air Force dress code is illusory. Real equality cannot be attained by such a flat and highly general rule for deviations as "nonvisibility." That rule "permits only individuals whose outer garments and grooming are indistinguishable from those of mainstream Christians to fulfill their religious duties .... The practical effect . . . is that, under the guise of neutrality and evenhandedness, majority religions are favored over dis29 tinctive minority faiths." Moreover, a requirement of specific, functional justification for each dress rule would help prevent those in authority from mistaking prejudice 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 needs and values. A critical function of the Religion Clauses of the First Amendment is to protect the rights of members of minority religions against quiet erosion by majoritarian social institutions that dismiss minority beliefs and practices as unimportant because unfamiliar. It is the constitutional role of this Court to ensure that this purpose of the First Amendment be realized. 30
BLACKMUN: Once we grant, as we must, the legitimacy of any uniform-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 inclination or are otherwise socially invested with special potential for insult, conflict, or divisiveness. See generally Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, STAN. L. RaV., (forthcoming 1986) (discussing cultural meaning as a significant aspect of a law's motivation and effect). Certain "functional aims" (for example, the aim of subjugating racial minorities) must of course be disallowed as themselves nonneutral. At that point, neutrality 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 role as 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 is substantial - "he was asked to violate the tenets of his faith virtually every minute of every work day" - and "entitled to meaningful review." Id. at 1317. Even the military must be held to provide some credible reason for such an imposition but none is offered. The contention that the wearing of yarmulkes will subvert armed-forces discipline is incredible and unsupported by evidence or argument. Air Force members are fully aware of their diversity of faiths and backgrounds. Yarmulkes cannot threaten any Air Force group identity. "To the contrary, a yarmulke worn with a United States military uniform is an eloquent reminder that the shared and proud identity of United States serviceman [sic] embraces and unites religious and ethnic pluralism." 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 functional grounds. Deviations may threaten no specific, securely neutral functional goals, such as safety, but only those more elusive ones supposedly served by uniformity itself. Thus the only way to sort out deviation requests may be for the regulator to consider: the degree to which [various deviations] detract from the overall image
of the service .... To allow noncombat personnel to wear yarmulkes
but not turbans or dreadlocks because the latter seem more obtrusive - or, as Justice BRENNAN suggests, less "polished" and "professional,". . . would be to discriminate in favor of this country's more established, mainstream religions [such as Orthodox Jewry] the practices of which [such as wearing yarmulkes] are more familiar to the
average observer .... In general, I see no constitutional difficulty in
distinguishing between religious practices based on how difficult it would be to accomodate them, but favoritism based on how unobtrusive a practice appears to the majority could create serious problems of equal protection and religious establishment, problems the Air Force clearly has a strong interest in avoiding by drawing an objective line at visibility. 3 ' [As Justice Brennan turned the tables on Justice Stevens, so Justice Blackmun turned them on Justice Brennan. Justice Brennan showed that by using the objective and formally neutral combination of prescribed uniform plus allowance for "nonvisible" deviations, the authors of the regulations had effectively disfavored minority as compared with majority religious groups. Justice Blackmun in turn showed that if the objective standard were exchanged for a flexible, ad hoc test, applications of that test would inevitably disfavor some minority re32 ligions by comparison with others. ] O'CONNOR: The Court ought not decide this case without "articulat[ing] and apply[ing] an appropriate standard for a free exercise claim in the military context." 3 3 From prior, nonmilitary religious exemption cases we can derive two general principles: First, because the government is attempting to override an interest specifically 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 that there would in fact be many requests for exemption that could not be denied on persuasively neutral, functional grounds. See id. 32 Justice Brennan's opinion contains an argument, perhaps in response to this point of Justice Blackmun's, that favoring Orthodox Jews over Sikhs (if that would in fact result from the more ad hoc approach he urged) would in itself be no worse than favoring most Christians over Orthodox Jews; his opinion implies that the total result would be more constitutionally satisfactory 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 before there is any chance that its claim can prevail. Second, since the Bill of Rights is expressly designed to protect the individual against the aggregated and sometimes intolerant powers of the state, the government must show that the interest asserted will in fact be substantially harmed by granting the type of exemption requested by the individ34 ual.
These principles are perfectly applicable to military cases. Any special military needs simply enter into the balances. No extraordinary rule of institutional status or deference is needed. Applying the first principle, the military need for discipline and esprit "unquestionably" meets the test. Applying the second principle, there is "no sufficiently convincing proof in this case to support an assertion that granting ' an 35 exemption of the type requested here would do substantial harm. The military's own regulations contradict its asserted need for absolute uniformity, inasmuch as they allow for a degree of personal variation and affirm that "each member has the right, within limits, to express
individuality through ... appearance."3 6 Goldman's yarmulke pres-
ents no conceivable threat to health and safety. The court below found, "in this particular case," that Goldman's yarmulke had never caused discontent or breach of discipline. "On the facts of this case, therefore, I would require the Government to accommodate the sincere 37 religious belief of Captain Goldman." The questions raised by the opinions of Justices Stevens, Brennan, Blackmun, and O'Connor - of generality and particularity, sameness and difference, rules and reasons - are fateful ones for current judicial struggles over such matters as discrimination,3 8 affirmative action, 3 9 and community self-determination, 4 0 as well as for the general movement of legal imagination and understanding of law's province
34
Id. at 1325.
35 Id. at 1326 (emphasis in original). I-12.a.(2) (1978), quoted in Goldman, io6 S. Ct. at r326 (O'Connor, J., 36 AFR 35-10,
dissenting). The tolerance for variation apparently contemplates rings and bracelets and a degree of 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, 458 U.S. 718 (1982); cf. Bowen v. American Hosp. Ass'n, io6 S. Ct. 2101, 2114-15 (1986) (holding
that federal "Baby Doe" regulations, requiring hospitals to treat handicapped infants despite absence of parental consent, were not authorized by a statute forbidding discrimination by
reason 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 is statutorily 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 contemporary discussion by legal scholars of the vices and virtues of legality and rights consciousness. 4 1 They correspond to a parallel set of problems troubling other normative disciplines 4 2 and thus confirm law's contemporaneity within a broader world of values and ideas. Goldman v. W1einberger is a Coverian parable. Simcha Goldman's claim represents his membership in what Robert Cover called a "paideic" community. Such a community is formed by strong interpersonal bonding through shared commitment to a specific moral tradition and its contemporary elucidation. 4 3 The work of elucidation is the com44 munity's paideia, through which the members find personal integrity and moral freedom. By their joint engagement in that work - of clarifying the history and the current meanings of their shared precepts 4 5 they constantly create their "nomos" or "normative universe." Goldman, standing with his yarmulke against "imperial" proscription, 4 6 represents paideic integrity. He adds his verse to that chapter of paideic narrative from which the preceptual practice of head-cov47 ering gathers its meanings. Against Goldman's paideia stands law's empire, represented by its judicial servants. Justice Stevens' opinion speaks clearly for their "world-maintaining" 48 service - "the constraint of peace" that impartial rules, objectively applied, may impose "on the void at which strong bonds cease."'4 9 Justice Stevens insists on uncompromising application of an abstractly impartial rule (the "non-visibility" standard for religious apparel), not for the sake of unity as such, or obedience as such, but for the sake of a world in which a plurality of commu41See, e.g., C. MACKINNON, Desire and Power, in FEMINISM UNMODIFIED (forthcoming 1986); C. MACKINNON, Francis Biddle's Sister: Pornography, Civil Rights, and Speech, in FEMINISM UNMODIFIED; Minow, Learning to Live with the Dilemma of Difference: Bilingual and Special Education, LAW & CONTEMP. PROBS., Spring 1985, at i57; Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363 (1984). 42 See infra pp. 24-33. 43See Cover, supra note I, at 12-13. 44That 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 that process. 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, devoted to keeping peace and practical order among the country's plurality of subcultural normative worlds. 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). 48Cover, supra note i, at 13. 49Id. 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 places the 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' impulse to accommodate nor the concrete appeal of Goldman's situation. For him, that impulse and that appeal are outweighed by the perception that, in the particular setting before him, exceptions - either en masse or in the only selective pattern he can imagine - will void the regime of both clean justification and pacific power. Justice Stevens' imperial stance in Goldman thus seems an act of personal responsibility, not of submission to transcendent necessity. It seems a conscious choice between universe and context, in the circumstances of this case. 5 ' Other Justices arrive conscientiously at other stances. Justice Blackmun stands a small step closer than Justice Stevens to context and accommodation: he would concur with Justice Stevens, given some concrete reason to believe the setting to be as potentially explosive as Justice Stevens imagines.5 2 Justice O'Connor stands, in Goldman's case, even closer to the pole of "context," though still within the tug of the pole of "universe." She will not judge this case - or, one infers, any case - without reference to some clearly articulated standard deemed apt for cases of its general class; but she will deem apt, for cases like Goldman's, a standard calling for appraisal, in full context, of the specific needs and interests of the particular 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 rather than violence." Id. at 53. 51 Certainly Justice Stevens is not habitually given to such an uncompromisingly imperialistic stance as the one he took in Goldman. For example, in last Term's Wygnant case he (i) rejected the proposition that a school board's voluntarily adopted scheme of preference for minority teachers in hirings and lay-offs could be justified only as a remedy for past unlawful discrimination against the favored teachers; (ii) posed the issue as that of "whether the Board's action advances 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 reference to 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 confines of one haunting opinion, his Bakke dissent. There he expresses both his hope for a country so free 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 and
will reach a stage of maturity where action along this line is no longer necessary. Then persons will be regarded as persons .... To ask that [a successful affirmative action program be arranged in a racially neutral way] ... is to demand the impossible. In order to get beyond racism, we must first 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 evaluation of governmental and individual interests affected by requested deviations from military dress
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in Goldman's case, for contextual appraisal without proposing any 54 standard.
Clearly, then, adoption of the imperial stance with respect to a particular case, or kind of case, can and therefore ought to be a judicially responsible act. Still there remains in that stance, whenever
adopted, some element of flight from responsibility or from what
Robert Cover called "commitment." 55 "Objective" legal standards seem to absolve judges of responsibility for the fates of individual
parties. 56 "Neutral" legal standards seem to absolve their promulgators - sometimes the very judges who apply them - of responsibility 57 for their contributions to socially unequal or conflictual outcomes.
Accordingly, a judge's commitment to imperial responsibility also involves a certain withholding of commitment. In this circumstance lies the pathos of the judicial role, and its irony, which Robert Cover expressed in the ironic label he gave it: "the jurispathic office." 5 8
The extreme example of the jurispathic office is the judicial commitment whose outward form is deference. This is commitment, by deference, to what Cover called "the violence of administration," 59 by
which he meant the impulse to make "the regime of obedience" 60 selfjustifying and so to subordinate the dynamics of legal meaning to the statics of public order. The Court's opinion in Goldman v. Weinberger exemplifies such deference. An authoritarian impulse seems manifest in 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 constitutionally protected "expressive" association over the majority's case-by-case test of particular membership decisions' impact on the organization's expressive activities). 54 Justice Brennan's opinion does not deny the value of a standard. It rather denies that any acceptable standard of justification for a serious imposition on religious liberty could be met 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 decrying standardless 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, 57For a definition of "neutrality," see supra pp. 9-io. Ifa 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 Administrative Motivation in ConstitutionalLaw, 79 YALE L.J. 1205, 1255-56 (,970). 58 Cover, supra note i, at 53. "Confronting the luxuriant growth of a hundred legal traditions, [judges] assert that this one is law and destroy or try to destroy the rest." Id. Cover may have meant to suggest that empire and paideia, or state law and nomos, are absolutely incompatible principles. If that were so, it would follow that the judicial role cannot itself partake of any paideia or any nomos. Whether or not this was Cover's view, it is not mine. See infra pp. x6-I7, 76. 59Cover, 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 bare affirmation, unsupported by evidence and unaccompanied by explanation, of the legitimacy not only of the general military goals of esprit de corps and habit of obedience, but also of the particular means evidently repressive and dubiously necessary - under challenge in
61 Goldman's case.
This Foreword will explore the problem of legal imperiality and especially its relation to personal freedom and self-government. I hope by that exploration to extend or expand - I could not possibly deepen the reasons Robert Cover has already provided for objection to judicial performances like the majority's in Goldman v. Weinberger. I will also explore further what is at issue between Justice O'Connor and other Justices in the Goldman case. 62 A chief vehicle for these explorations will be a consideration of the so-called "republican" or "civic" tradition in political thought, which has recently become an object 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 question of the nondemocratic character of the Supreme Court and indeed of the very project of "constitutional law." That question has typically been posed in terms of a "counter-majoritarian difficulty" - Alexander Bickel's phrase for the perception that sitting legislatures more truly express the people's will than do old and judicially much-mediated
texts. 64 My reading of the republican tradition, and its relation to
American constitutionalism, points away from the counter-majoritarian difficulty as the true focus of democratic concern. 65 Not surprisingly, that reading confirms that, however Bickel's difficulty may or may not be resolved, the Court is, vis-a-vis the people, irredeemably an undemocratic institution. It suggests, further, that counter-countermajoritarian remedies - such as more judicial deference to the "political" branches - only aggravate a problem they cannot fix. In the end I will suggest that it is as much the Court's office to constitute its 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 always take a deferential stance towards "administration." See, e.g. Garcia v. San Antonio Transit Auth., 1o5 S. Ct. oo5 (i985) (Rehnquist, J., dissenting) (reaffirming his stance in National League of Cities v. Usery, 426 U.S. 833 (1976), which was overruled by Garcia); Kaiser Aetna v. 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. POLITICS BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF
16-17 (1962). 65 Here I am merely elaborating on the work of Bruce Ackerman. See Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013 (1984) (discussed below at pp. 59-65).
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way, if the Justices have any way to further the cause of our selfgovernment, it lies through the exercise of their own. Developing this point of view will involve us in a reexamination of the ideal of the empire of laws and not of men. I hope to contribute to the retrieval of an old sense of that expression a republican sense, I will propose - which differs from both John Marshall's 67 remedial sense 66 and John Stevens' formal one.
This republican sense of the empire of laws and not men rejects
the foisting of responsibility for the immediate decision of a public
controversy upon any nonpresent, unexaminable, impersonal, or abstract authority - the sovereign, the law, the rule, the precedent, the Air Force. It demands, instead, acceptance of unmediated responsibility by those present and acting at the moment of decision. It may
seem that this is precisely the empire of men and not laws. How one 6 8 might think otherwise must await the work of retrieval.
II. THE REPUBLICAN TRADITION
A. Contemporary Appropriation
i. American Constitutional Thought.
Republicanism is not a
well-defined historical doctrine. As a "tradition" in political thought, it figures less as canon than ethos, less as blueprint than as conceptual grid, less as settled institutional fact than as semantic field for normative debate and constructive imagination. 69 In the professional specialties of American constitutional law and theory, republicanism now 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. (I Cranch) 137, 163 (1803). 67 In his Goldman opinion, Justice Stevens upholds the modem idea of the rule of law understood 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 recent work in feminist jurisprudence comes as close as any I know to reviving what I will suggest is a republican sense of law. See infra pp. 28-33. And while surely a person's gender does not determine 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 Goldman opinion. See infra pp. 33-36; cf. Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 VA. L. REV. 543 (1986) (studying the opinions of Justice O'Connor as possibly manifesting 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, 9 POL. THEORY 353 (1981).
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set against the vision believed to have predominated in the thought of the framers and in the Constitution they framed. Such a visionary "opposite," if reasonably clear and coherent, may serve a number of heuristic and argumentative functions important to constitutional lawyers. 70 Viewed as a rejected alternative, the "opposite" can be used 71 to clarify the assumptions and aims of the prevailing scheme. Viewed as a partially accepted or surviving competitor, it offers lawyers both a framework for interpretive debate 72 and a premise for "deviationist doctrine." 73 We can dispute constitutional issues, and innovate doctrinal futures, by debating the extent to which the "opposite" 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 constitutional law casebook 74 have introduced republicanism at the very outset of their book, presumably to serve as a basic reference point throughout 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 classical republicanism, a theory of government that influenced, among others, 75 Montesquieu and Rousseau." In the ensuing brief sketch of the republican and antifederalist case, 76 the authors highlight two central, organizing ideas: civic virtue and general good. 77 These two ideas are closely related. Republicanism's "animating principle" is said to be civic virtue. Civic virtue is in turn defined as "the willingness of citizens to subordinate their private interests to the general good." 78 Cultivation of this public
70 See Nedelsky, Confining Democratic Politics: Anti-Federalists, Federalists, and the Constitution (Book Review), 96 HARV. L. REV. 340 (1982) (illustrating and suggesting the range of possibilities). 71 See, e.g., Note, The Origins and Original Significance of the Just Compensation Clause of 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 are detectably, but also subordinately, present in the received doctrinal materials. See Unger, The CriticalLegal 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]. 75Id. at S. Antifederalists were those who opposed ratification of the Constitution. Federalists supported it. See H. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR (198i). 76 See CONSTITUTIONAL LAW, supra note 74, at 5-6. 77Stone 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).
78CONSTITUTIONAL LAw, supra note 74, at 5.
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spirit is "government's first task." 79 Republicanism favors a highly participatory form of politics, involving citizens directly in dialogue and discussion, partly for the sake of nourishing civic virtue. Thus republican politics consists of self-rule. It is, however, "self-rule of a particular 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 linked closely with the size and composition of the political community. The casebook tells us that the antifederalists opposed expansion of the powers and status of the national government at the expense of those of states and localities, on two grounds. First, the expanded national sphere would be characterized by a plurality of outlooks and clashes of interest. It would lack the spiritual and material homogeneity, maintainable only in small communities, required to support and reward unselfish devotion to the common good on which, in the traditional republican view, "genuine freedom" depends. 8 1 Second, the relationship between citizens and the national government would be distanced, mediated by representatives who would actually make the decisions. Citizens would be deprived of the experience of "faceto-face ... deliberation and debate" which "inculcate[s] civic virtue."'8 2 In sum, antifederalists contended, the federalist Constitution would "undermine the system of decentralization on which true liberty depended."8 3 A problem with the casebook's account is that it leaves republicanism's appeal unexplained. In what may be considered a companion essay by one of the casebook's coauthors,8 4 Cass Sunstein, emphasizing the deliberative aspect of the republican view of politics, calls it an "attractive conception, 8 5 suitable for use as an evaluative standard in judicial review of political processes and outcomes. 8 6 But the casebook version suggests no reason, persuasive to modern liberal sensibility, for valuing the republican conception enough to argue for its survival or renewal. 87 Yet without substantial appeal in its own
79 Id.
SOId. 81 Id.
82 Id. at 6. 83Id. 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 of doctrines of judicial review of the "rationality" of statutes and of various aspects of administrative process. 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 republicanism can have little explanatory or persuasive power in contemporary interpretive debate. Not only does the casebook's account leave uncertainty about republicanism's positive appeal, it leaves republicanism exposed to objection on grounds of both equality and liberty. Republicanism's stance towards equality has been a matter of dispute. As the casebook has it, the republican vision is not only highly participatory and inclusionary, but also redistributive.8 8 The casebook makes republicanism an antifederalist ideology, and it makes antifederalists democrats. However, this egalitarian picture of republicanism is controversial. There are scholars who see republicanism as federalist ideology, and federalists as antidemocratic elitists;8 9 and there are some others who concur in the casebook's identification of republicanism with antifederalism, but see antifederalists as conservative and undemocratic.9 o Those who view republicanism as elitist make two points: first, they say republicanism holds that independent means are a material condition of civic virtue and hence are a qualification for office-holding or even admission to the franchise. Persons who are economically dependent or insecure are not trusted to set the public good above their own immediate wants or to assert their honest deliberative judgments against the wishes of their patrons. 9 1 Second, they say republicanism holds that, wealth aside, there is a natural aristocracy of talent, for whom92the tasks of government should, in everyone's interest, be reserved.
attitude of "possessive individualism." See C. MACPHERSON, THE POLITICAL THEORY OF POSSESSIVE INDIVIDUALISM: HOBBES TO LOCKE (1962). I mean a much broader attachment to the precious "historical accomplishment," Cornell, Toward a Modern/PostmodernReconstruction
of 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, What Is 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] extreme disparities 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' constitutional 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; THE FEDERALIST 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-
i9s6]
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From the standpoint of liberty, the casebook account itself suggests two troubling problems republicanism must resolve. First, equating self-rule with collective determination, by everyone for everyone, of regnant values (social and private) seems to overlook the value of individual self-determination. Second, giving civic virtue the status of a first principle, whose cultivation is the first concern of government, seems to subordinate the independent pursuits of individuals quite severely to societal concerns. Although we are told that in the republican vision "genuine freedom" depends on civically virtuous selfsubordination, we want to know how this can be the case. 93 How does freedom depend on civically virtuous self-subordination? How, moreover, can everyone be self-ruling in the stipulated sense of selecting the community's regnant public and private values?9 4 Is deliberation a magic guaranteed to create an authentic consensus? If not, does civic virtue in the end really mean giving in, exchanging your convictions for your civic friend's after you have all deliberated to impasse? When everyone is civically virtuous, how is it settled who gives in, if decision is neither by brute voting nor by domination, whether brute or subtle? Republicanism contests with a so-called pluralist vision, which regards the political system as, ideally, designed to serve the selfdefined private interests of individuals or groups, fairly represented in political forums, where they compete under fair rules for fair shares of the outputs of public policy. 95 We have just seen republicanism on the defensive in that contest, on both the major fronts of equality and freedom. 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 some unusual, possibly paradoxical, meaning is intended. We have learned, when we hear something
like "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 THE SOCIAL CONTRACT AND DISCOURSES 3, IS (G. Cole trans. ed. 1950). Compare the "public liberty," with which, Sherry says, "individual liberty was presumed synonymous." Sherry, supra note 68, at 553. But cf. id. at 555 (stating that for classical republicans "[i]ndividual liberty may mean the right to pursue private goods; public liberty must mean the right to participate in 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 a
sympathetic and admiring reading, but finding that his theory founders on the presupposed but undemonstrated existence of objective right or general interest).
95 See J. ELY, DEMOCRACY AND DISTRUST (1980); Michelman, Politics and Values or What's Really Wrong With Rationality Review?, 13 CREIGHTON L. REV. 487, 492-99 (1979) [hereinafter
Politics and Values]; Michelman, PoliticalMarkets and Community Self-Determination: Competing 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 republican premises, one anthropological and one epistemological, which might satisfy the need. The anthropological premise is that of "public happiness," in a phrase used by Hannah Arendt. 9 7 The epistemological premise is that of "practical reason." 98 "Public happiness" is simply the notion that "[p]articipation in government [is] a positive good, providing a kind of 'happiness' that [can] be found nowhere else." 99 In another typical formulation of the doctrine, which discloses both classical and renaissance antecedents, "'homo is naturally a citizen and most fully himself when living in a vivere civile."' 0 0 By her celebration of the experience of being "seen in action,"' 0 1 as a participant in public affairs, Arendt may seem to have cast classical republicanism 10 2 in a refreshingly individualistic light. 103 Here, however, some caution is in order. At its Aristotelian source, "public happiness" doctrine attributes to human beings a telos, a defining end or purposive essence, preinscribed by nature. 10 4 But the idea that citizenship (or any other specific social role or form of life) is the essence of the human subject runs against the modern liberal temper. It seems that to urge on such grounds the renewal of civic life is to reject liberalism's historic deliverance of individuality 05 from pre-Enlightenment oppressions of mind and spirit.,
vision is germane only to small communities so homogeneous that disagreements about public policy are always technical (over means) rather than practical (over values or ends). In that case, it would be apparent (I) why discussion outranks voting (indeed voting would then seem beside the point); (2) how the process can, in a manner of speaking, "liberate" people from mistakes about the right means to satisfying their actual preferences; and (3) what sense it in may be said that everyone joins in "selecting" the ends. It would, however, be quite unclear why civic virtue is then of any concern, or why general participation, as opposed to the rule of experts, 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 constitutional law or theory. 97See H. ARENDT, ON REVOLUTION 111-37 (1963). 98 Sunstein, supra note 72, at 36. 99Id.; 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 Aristotelian 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 appealing even 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 live in 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, making some humans fitted for mastership and others for slavery, see, e.g., E. BARKER, THE POLITICAL THOUGHT OF PLATO AND ARISTOTLE 363 (Dover ed. 1959), or some fitted for the great world and 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 epistemological premise, that of "practical reason." The premise is not only that in public discussion people can rise above private interest in pursuit of the public good, but also that "debate and discussion help to reveal that some values are superior to others. Denying that decisions about values 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 freedom under the collective determination of values. If a discussion, in which all have engaged, has literally "revealed" which values are superior to which (and has, in that sense, disclosed the general good) no one could have reason to opt against the revelation. Practical reason so understood, however, will seem ominously totalist to modern sensibility. 107 To meet modern individualistic concerns, practical reason must be something harder to explain. It must be a process of normative justification without ultimate objectivist foundations - of justifying social choice, in the sense of satisfying all contenders without denying that their conflicts, of interest or of vision, are deep and possibly enduring. Here, then, is where we stand: republicanism, in what may fairly be called a standard or conventional description, seems to fall either into what liberal modernity must view as objectionable foreclosure of human possibility (the teleological premise of "public happiness") or objectionable restraint of individual self-direction (the objectivist premise of the common good). Republicanism can give up one or the other of these premises, but not both. If it gives up both, there seems little left to say on its behalf. Yet it will be my aim in what follows to show that the republican tradition of civic dialogue retains a strong, if somewhat disguised and twisted, hold on American constitutional imagination. To understand
(Bradley, J., concurring in judgment) (872). On the modern fate of normative teleology, see generally 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, rejects appeal to any Aristotelian notion of a "functional human nature" or "metaphysical biology" as a 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. at 8o-85; cf. Sunstein, Legal Interference With Private Preferences, 53 U. CHI. L. R~v. (forthcoming 1986) (considering arguments for rejecting private preferences as bases for social choice). Sherry reassuringly emphasizes practical reason's aspects of construction, context, and contingency; but even then she finally rests the classical case for collective determination of values on a fundamental perception of "humans... as members of a unitary community." Sherry, supra note 68, at 548; see id. at 552-55 (noting that republicans "conceived of society in organic terms").
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how that can be so, we need a fuller account of the tradition's deeper motivations than the standard version supplies. The path to understanding, I believe, lies not through "public happiness,"' 0 8 but rather through practical reason. Neither common good nor civic virtue is where the path begins. By a historical excursus I shall suggest that those alleged first principles make their appearances in the tradition only as conditions of something else, something of prior importance, whose appeal I take to be basic and undeniable: namely, individual freedom. My reading of the history will not show the standard version mistaken in its ascriptions to republicanism of either the objectivism of public good or the teleology of civic virtue. Quite the contrary. I wish rather to suggest why the civic ideal retains its hold despite its insults to modern liberal sensibilities. By the same token, I wish to help clarify what is ultimately
at stake freedom, or self-government in the question of practical
reason's possibility. The nature of that stake may, finally, help explain a role that we attribute to the Supreme Court: that of representing to us the possibility of practical reason. 2. Political and Social Theory. (a) Freedom and Self-Government. - Histories, we are advised, are constructed from the standpoint of the present.1 09 If that is true, then the republican tradition is, on one reading, an historical projection of contemporary rebellion against a modern ethical dilemma that has been called the Cartesian Anxiety: 110 the sense of entrapment between nihilism on the one hand,"' 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, CriticalLegal 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 to ourselves .. . ." 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 something about our issues when in fact they were addressed to very different ones. Id. That danger certainly attends this essay. 110 "Cartesian Anxiety" is philosopher Richard Bernstein's term for the sense of being caught between objectivism ("the belief that there are or must be some fixed, permanent constraints to which we can appeal and which are secure and stable') and relativism (the "message ... that there are no ... constraints except those that we ... accept"). R. BERNSTEIN, BEYOND OBJECTIVISM AND RELATIVISM: SCIENCE, HERMENEUTICS, AND PRAXIS I6, 18-19 (1983); see id. at 16-2o (discussing the nature of Cartesian Anxiety). M "Eitherthere 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 moral chaos." 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 Justice Stevens 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 vulgar or sophisticated forms of ethnocentrism in which some privileged understanding of rationality is 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, and civic friendship. 1 13 The memory of the republic of reason is retrieved, 4 or perhaps constructed, in the wake of this demand." At stake in the Cartesian Anxiety is the possibility of freedom. Freedom, of course, is contested conceptual territory. According to some theorists, clarity and coherence demand an understanding of freedom as strictly "negative," simply the absence of coercive social
restraint 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, but 6 reasons one gives to oneself - is morally significant or valuable." This positive conception of liberty does not easily coexist with the moral skepticism or "decisionism" that seems to be modernity's practical common sense. 117 Decisionism is the conviction that moral choice proceeds not from publicly certifiable grounds or reasoning, but from the inexplicable private impulses of individuals, objectively unfounded and 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's opinion 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, 1-3 114
& passim.
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 Hannah Arendt, Hans-Georg Gadamer, Jurgen Habermas, and Richard Rorty); A. MACINTYRE, supra note 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 a general, interdisciplinary republican revival); cf. Sandel, The Procedural Republic and the Unencumbered Self, 12 POL. THEORY 81 (1984) (describing the shift in American public philosophy from one of democratic participation and common purposes to one of fair procedures and individual rights). For skeptical and critical commentary see Fried, Liberalism, Community and the Objectivity of Values, 96 HARV. L. REV. 96o (1983) (reviewing M. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982)); Herzog, Some Questionsfor Republicans, 14 POL. THEORY 473 (x986); Hirsch, The Threnody of Liberalism: Constitutional Liberty and the Renewal of Community, 14 POL. THEORY 423 (1986); Young, Impartiality and the Civic Public: Some Implications of Feminist Critiques of Moral and PoliticalTheory, 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 Sir Isaiah 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 suspicion of 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 only technical. That is, reason is employed only in the selection of means to ends or values already given, 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 comfortably with the doctrine of negative liberty: that freedom depends strictly on protection of individual subjectivity against social oppression." 9 By the same token decisionism is hostile to the positive libertarian idea that "ethical situation"120 - inclusion in a social process of deliberation about how to live - is a condition of freedom. 12 1 Another name for positive freedom is self-government. "Self-government" suggests an internal tension of subjective and objective elements. In his moral philosophy, Immanuel Kant worked the tension into a profound theory of freedom, starting with the idea that motivation by uncriticized inclination is a mode of subjection, not of 22
freedom. 1
In Kantian terms we are free only insofar as we are self-governing, directing our actions in accordance with law-like reasons that we adopt for ourselves, as proper to ourselves, upon conscious, critical reflection on our identities (or natures) and social situations. 123 Freedom thus is compounded of both a volitional and a cognitive element, of both will and self-knowledge. One might well call this Kantian ideal freedom as integrity.124 The Kantian sense of freedom has deep roots in the republican tradition.125 Kant himself was directly linked 26 to republicanism through Rousseau, whose work inspired him.1
119 By "freedom" (or "liberty" individual freedom (or liberty). I use the two words interchangeably) I will always mean By "subjectivity" I mean what is often called "individualism,"
including both the conception of each self as its own discrete locus of experience and motivation and "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 disintegration of 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 to paralysis.
The loss of shared standards robs the individual of a sense of purpose. We become what 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 of Rousseau and the republican tradition, see J. SHKLAR, MEN AND CITIZENS: A STUDY OF
ROUSSEAU'S SocIAL THEORY (1969).
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(b) Self-Government and Citizenship. - Citizenship is direct participation, as an equal, in the determination of common affairs. Republicanism holds that citizenship is for individuals an interest both positive and primary. Any view in which the true, primary interests of individuals are "exogenous" or prior to politics is unrepublican. Republicanism rejects the idea that political activity is, at best, a mere means 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 citizenship - to all who conceive of the human individual as in some degree socially situated or constituted. 12 7 This view of the human condition implies that self-cognition and ensuing self-legislation must, to a like extent, be socially situated; norms must be formed through public dialogue and expressed as public law. 128 Normative reason, it then seems, cannot be a solitary activity. Its exercise requires knowledge, including self-knowledge, obtainable only by encounter with different outlooks in public argument. Thus its requisite forum is "a political community of equals," and its requisite temper 129 "a willingis ness to submit opinions to public exposure and debate."
127For 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 protect negative liberty and that this may be its best justification. See J. APPLEBY, supra note 89, at I8-i9; Skinner, The Idea of Negative Liberty: Philosophicaland Historical Perspectives, in PHILOSOPi Y IN HISTORY 193 (R. Rorty, J. Schneewind & Q. Skinner eds. 1984) (ascribing this view to Machiavelli); cf. W. NELSON, ON JUSTIFYING D)EMoCRACY (1980) (stating that democracy is better defended by the tendency to promote substantively just legislation than as a realization of self-government); Nelson, Huntington on Democratic Politics:A Review of American 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 common subjection to law.... ... This entails not just that each of us recognize that he stands as a human being among humans, . . . that is... that we are under the same law. It also entails that we recognize this together, that this law is what coordinates our lives, and shapes the public life or our society. Freedom for humans ... is essentially within a moral order; and this in turn is constituted by a common recognition which is essentially brought about in a political order. 2 C. TAYLOR, supra note i6, at 328-29. I should note that Taylor's is a controversial reading of Kant. Others read Kant as more radically individualistic. See, e.g., M. SANDEL, supra note 114. 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 Hannah Arendt'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 by way of Kant, freedom-through-citizenship is a juristic as well as a civic idea; it is an idea of inclusive public deliberation directed to the utterance of one law for all. Few critics deny to such a vision its moment of truth.' 30 Increasingly, however, critics have found this vision wanting in resources of self-criticism and fraught with contradiction of its own universalistic ideal. At the root of the difficulty lies telos - the notion of a predetermined human or social essence1 3 1 universalism's seemingly unshakeable fellow-traveler.1 32 We have already noted how normative or practical reason pushes strongly towards teleology, 13 3 and we may now consider how that connection is related to the idea that such reason must be public. Situated practical judgment seems always to involve a combination of something general with something specific, endorsement of both a general standard and a specific application, or of both a general value and a specific means to its effectuation. Judgment mediates between the general standard and the specific case. In order to apply the standard in the particular context before us, we must interpret the standard. Every interpretation is a reconstruction of our sense of the standard's nieaning and rightness. This process, in which the meaning of 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. Pitlin discusses 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 for which we are not acknowledging our responsibility. Id. at 345. Drawn into public life by personal need, fear, ambition or interest, we are there forced to acknowledge the power of others and appeal to their standards .... We are forced to find or create a common language of purposes and aspirations, not merely to clothe our private 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 entitled to," a clalm that becomes negotiable by public standards. In the process, we learn to think about the standards themselves, about our stake in the existence of standards, of justice, of our community, even of our opponents and enemies in the community; so that afterwards we are changed. Economic man becomes a citizen. Id. at 347. I cannot fully discover who I am, learn public judgment, in exclusively private relationships. And I am not yet fully taking charge of my life and of what I am doing, until I join 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 practical reason 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 human nature." Id. at 293, 296.
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it to cases is one that every common law practitioner will immediately
recognize. 134
A normative proposition is general or law-like - is a standard insofar as it abstracts from the wealth of detail found in live social contexts, picking out a few features of a case or situation as normatively significant. A mature normative or legal "system" is composed of many such standards, each abstracting on its own perceptual axis, focusing on its own "key" categories of facts. To apply the body of standards persuasively to any given case means to perceive or "shape up" the case - to organize it and pick out from the fullness of its live detail its normatively significant features - in a way that matches or appeals to the sensibilities of the audience or the community. The mode of thinking involved is empathic. It calls for "enlarged mental135 ity," always implicitly testing itself against the views of others.' Although practical reason, as thus described, is said to be "not a faculty of Man in his universality, but of human individuals in their 1 particularity and plurality,"' 36 it does also evidently depend upon what Robert Cover called the community's "nomos" or "normative universe" its "commonalities of meaning that make continued normative activity possible."'1 37 Without some such assumption, the process seems incomprehensible. Yet unless we can keep nomos from lapsing into 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 expressions or invocations of a telic human nature have, in practice, been disunifying - exclusionary, hierarchical, and selectively oppressive. This dismaying lesson applies to even the seemingly most rarified and abstract notions of human essence. (Or perhaps the lesson is that no telic ideal is "rarified" and "abstract" when regarded from a critical standpoint other that its own.) 138 This holds even for the Enlight134 See R. BERNSTEIN, supra note 11O, at 54, 147-48; Michelman, Justification and Justifiability 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 argument taps 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 acceptance of ethical principles and norms, then [practical reason] as the mediation of such universals in particular situations makes good sense."). 138 The lesson is exemplified by the classical polis from which the entire civic-republican tradition has sprung. By one interpretation, the human telos in classical civic vision is the application 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 may be the "true" or highest vocation, but it is not the only aspect or form of life. Telos cannot deny bios. As there are needs of the flesh, those needs too must have their ministers and HeinOnline -- 100 Harv. L. Rev. 29 1986-1987
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enment, or Kantian, conception of human nature - conceived, as it was, with the very aim of lifting the oppressions and injustices of 39 socially ascribed and differentiated roles.1 The Kantian telos, as generally understood, envisions a human subject whose essence is that it is prior to all social situation and context. That essence is pure, unconditioned - but somehow still rational and reasonable - self-direction. The corresponding public normative stance is that of impartiality. The corresponding institutional form is that of the law universal, its universality manifest in the generality of its formulas, ideally abstracted from all divisive 40 contingencies of actual social life.1 Kantianism in that form implies the expulsion of materiality that is, "desire, sentiment, and the particularity of needs and interests" - from an honored public to an excluded private realm. 14 1 This expulsion, however, is not itself universalist or inclusive, but partial and exclusive. The legal stance of impartiality, of looking past the concrete parties, with their concrete needs, to some adequately neutral principle implicated by their case 142 - the stance, as we may describe it, of denying the decider's direct responsibility to the parties for the legal 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, the private space of mastership in which the citizen's material needs are met and his experience of
personal self-rule is confirmed, by others excluded from citizenship. See, e.g., J. POCOCK, THE
MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION 68, 390-91,
450 (1975) [hereinafter MACHIAVELLIAN MOMENT]. The private space 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 public debates 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, THE HuMAN CONDITION, supra note 1o. But see R. BERNSTEIN, Rethinking the Social and the
Political, 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, The Family 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 ConstitutionalLaw, 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 potential of determinedly abstract law. Goldman v. Weinberger14 4 sugx45 gests the rest. So too does Plessy v. Ferguson: only in sedulous abstraction from concrete experience could "separate" have seemed 14 6
"equal."
(d) Reconciliation. - The positive or ethical notion of freedom requires both that one have reasons for actions and that the reasons be one's own.147 It thus makes conflicting demands on the relations of individuals with communities: on the one hand, positive freedom implies a social process of normative deliberation, based in commonality; 148 on the other, it rejects all predeterminations of human essence and social role.149 Much of contemporary social theory seems to search for reconciliation between these two demands of ethical situation 5 0 and free subjectivity.' 5 ' The work proceeds along various tracks, none of them leading to clear and final results. One important branch of this work focuses on the procedural conditions of undominated normative conversation. It aims to specify forms of "communicative action" that are oriented toward producing mutual or shared understanding among the discussants.15 2 The emphasis is on open and critical interchange on questions of value, capable of producing agreement without resort to an overarching social 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 possibility 53 of reaching agreement through mutual dialogue and discourse.' Other work takes a less regulative, more "pragmatic" approach to this problem of reaching normative agreement, uncoerced by either social power or unexaminable, foundational belief. Pragmatism looks to shared experience to produce intermediate premises, which although local, provisional, and relative to situation, may be normatively sufficient 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 "colorblindness," see Plessy v. Ferguson, 163 U.S. at 552, 559 (Harlan, J., dissenting), is also a supreme 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 and particular 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 - may provide the resources of self-recognition, necessary for normative guidance and validation.' 5 6 Closely related is the idea of what might be called trajectoral self-definition (of individuals and communities) through narration - that is, through integrative reconstruction of personal or social pasts as "stories" that define ethical identities (or characters) "thick" enough to guide current choice. '7 Another approach, in a more abstract philosophical mode, searches for normative common ground in the idea of the "intersubjective" constitution of individual selves.' 5 8 According to this approach, the common ground can be located in an understanding of every person as thoroughly conditioned by a shared social context that helps constitute that person's identity. This social context consists not only of networks of personal relationship but also, more fundamentally, of language, culture, and their influence on how we perceive the world. The relationship between the individual and the community in this conception is dialectical. Neither term is comprehensible without the other: the community is a community of individuals, whose own identities are inseparable from their social involvements. This interdependence of individual and society is said to lead individuals to recognize their common ground with others by showing them how they are both different from and the same as others. In a strongly emergent feminist theme, the suggestion is that awareness of interdependence invites recognition of how our sameness is our difference. The human universal becomes difference itself. Difference is what we most fundamentally have in common. Moreover, difference is a relationship between or among persons. It is not in any particular person or class of persons as a deficiency or shortfall from 59 some standard way of being.' The hope for this kind of mutual recognition is that it makes possible normative interchange that is, at the same time, (i) mutually
1s4 See id. at 54; supra pp. 28-29.
R. BERNSTEIN, supra note iio, at 130, 167, 204. 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, in CONSEQUENCES 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 Critique of Rights Analysis, 63 TEX. L. Rxv. 387, 397-401 (1984).
155 See 156
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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 common ground that enables us to contribute to one another's freedom. We recognize, reflect, define, enlighten, and transform one another as we ourselves are reciprocally recognized, reflected, defined, enlightened, and transformed. Binding together the various reconciliatory projects are certain characteristic themes. There are themes of dialogue: conversation, inclusion, and recognition; themes of history: narration and continuation; themes of responsibility: contextuality and immediacy; and themes of identity: shared humanity (including difference) and common good (including confrontation with difference). The dialogic themes express the vision of social normative choice as 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 neither begins nor ends now. We have individual pasts and a collective past, and those pasts raise for us issues of identity and integrity. 160 At the same time we have, we hope, our individual and collective futures, and our conversation now ought not to foreclose future conversations. The responsibility themes express demands for both clear-sightedness and personal engagement. They warn against the comforts of legal abstraction, hiding or overlooking actualities of social disadvantage. 161 They protest against projection of the agency of decision onto a distant force - such as law or state - when the truth is that their 62 distance is what we make it by our deference. 1 The identity themes reflect the tug between the demands for both ethical situation and personal "space" as dual conditions of freedom. They also point most obviously towards the irresolvable tension between generality and particularity that pervades the reconciliatory enterprise as a whole. Together, these themes compose a loose unity of their own. They characterize a modern project of ethical reconciliation through dia63 logue, in search of freedom. 1 Happily for us, their conjunction is strikingly exemplified in Justice O'Connor's dissenting opinion in Goldman 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). 162See 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, or particularity and generality.
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reconciliatory dialogue helps reveal its unity, by explaining what may otherwise seem a puzzlingly disunifying feature of it: namely, its mixed message regarding the desirability of a decisive legal "test or standard" 64 for cases of the type into which Goldman's falls.' Justice O'Connor is especially insistent that the Court formulate a general doctrinal test for cases, like Goldman's, of "Free Exercise claims in the military context," 165 and she provides one. Hers, however, is a "balancing" test, applicable only by contestable evaluations of the concrete interests at stake in particular cases. The test lacks decisive "objectivity," in Justice Stevens' sense.1 6 6 Although Justice O'Connor's application of the test in Goldman's case may reach a little beyond that case - perhaps to all cases of requests to wear yarmulkes in peripheral duty stations1 67 - she certainly has not decided anything much beyond. Her testing categories - "unusually important interest," "substantial harm" - are so open to contextual appraisal that a decision here and now for Goldman leaves her uncommitted on the cases of dreadlocks and turbans that so trouble some of her brethren. As far as we can read, she expends no present worry on whether or how 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 significant act of commitment on Justice O'Connor's part. Its formula commits her, in the first place, to the Court's and the country's project of resolving normative disputes by conversation, a communicative practice of open and intelligible reason-giving, as opposed to self-justifying impulse and ipse dixit. The test's open categories invite the expression and examination of doubts and disagreements, not just about formulation of a standard for cases like this, but about this case and how its resolution will, given the context, affect the meanings of the whole complex of governing standards. The balancing test, with its contextual focus, solicits future conversation, by allowing for resolution of this case without predetermining so many others that one "side" experiences large-scale victory or defeat. Justice O'Connor's use of such balancing displays both its reconciliatory spirit and its dialogic force: she can acknowledge as "unquestionably" real and legitimate the major interests asserted by the losing party, 168 while enforcing on that party a 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 unquestionably an especially important governmental interest"). 169 See id. at 1326 (noting that the Air Force contradicts its own claim of "need for absolute HeinOnline -- 100 Harv. L. Rev. 34 1986-1987
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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 affirming rather than denying her responsibility - in company with her colleagues - for the decision of the parties' case. It makes the Justice confront the parties in the flesh, so to speak. 170 It denies her the refuge of objective determinacy lodged in some force other than herself. Justice O'Connor's particular choice of a test commits her, in the third place, to a particular version of national normative history and, through it, of national normative identity. As narrator resuming in 7 medias res a story of many threads - "this Court's precedents"'1 1 it is she who decides which threads to pick up, where, in what combination. The subplot she chooses is that of the social conflict of religion and regulation. To see the commitment in that choice, one need only compare it with Justice Rehnquist's for the Court. His
subplot no less fairly available than hers in the history
-
is that
of separation of powers, of the articulation of government into agencies related by status. These narrative choices express world views: in her subplot, the setting is society, the protagonists are troubled persons, and the agon is social difference. 17 2 In his, the setting is the state, the protagonists are abstract authorities, and the agon is institutional deference. The choice of subplots also, of course, affects the tenor of today's decision, with implications for tomorrow's: Justice Rehnquist's subplot draws Goldman's claimed personal need into the general category of individual interests owing special deference to the social role of soldierhood. Justice O'Connor's subplot draws the military's claimed institutional need into the general category of government interests owing special respect to personal acts of religious observance. The result is not only that Justice O'Connor decides for Goldman 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 express individuality 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 out that 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's criticism 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 attractive," in part because of his evident "devotion to his faith," but going on to say that the dress rule should be tested as it would, presumably, apply to any Air Force member who held "sincere religious 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 athletic
field or race course. See, e.g., I OXFORD ENGLISH DICTIONARY 187 (1983); WEBSTER'S NEw INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 51 (2d ed. unabridged 1948).
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affirms the past practice of strict scrutiny of governmental impositions on freedom of religious observance, with all that that affirmation implies about priorities of personhood and statehood, and freedom and authority. 173 The dialogic attitude has produced the strongest judgment 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 among several, not of solitary, self-contained pronouncement. It directly addresses each of the other four judicial speakers in the case, calling each by name, the only one of the five opinions to do so. 174 It speaks in the voice of colloquy, not authority; of persuasion, not self-justification. Altogether, the opinion seems a model of judicial reconciliatory dialogue. B. Recovery: The Deep Tradition In the version I am about to offer, the civic republican tradition is deeply - though far from perfectly - reconciliatory. 175 I present the tradition as participatory, conversational, inclusory, reasonable, and strongly committed to immediacy. Yet it also has elements of teleology, objectivism, and abstraction that seem finally incompatible with the modern dialogic attitude I have been trying to describe. The tradition's flawed exemplification of dialogic possibility may, I suggest, help explain both its current resurgence in political discourse and the suspicion with which that resurgence is met. I distinguish a "deep" from a "proximate" republican tradition in Anglo-American political thought. The deep tradition culminates in the seventeenth-century writings of James Harrington. It has at its heart a positive-libertarian ideal of individual self-government through politics. The proximate tradition - what it is proximate to is us, in the 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 order and that "any special needs of the military can be accommodated by the compelling interest prong of the test." Goldman, io6 S. Ct. at 1317-18 n.2. At another point he states that it is not the Court's province to second-guess professional military judgments but rather "to assure ourselves that there exists a rational foundation for assertions of military necessity when they interfere with the free exercise of religion." Id. at 1321. 174 See id. at 1324 (O'Connor, J., dissenting). Justice O'Connor, following convention, refers to the author of the majority opinion as "the Court" rather than "Justice Rehnquist." Id. Justice Blackmun's opinion refers to all the others in effect, though not to all of them by name. He is the only one of the other four opinion writers to take any cognizance of Justice O'Connor's opinion. 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 eminent historian of the republican tradition, J.G.A. Pocock, leavened by some reading of James Harrington. At least one distinguished historian of political thought sees matters differently. See
Skinner, supra note 127.
x986]
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- is republican ideology seemingly redirected over the century following Harrington to negative-libertarian aims, perhaps mixed with persisting positive-libertarian ones. 176 This divided account may help explain how, say, Cass Sunstein, 177 Joyce Appleby, 178 and Drucilla Cornell' 7 9 can be seeing such different things in the republican tradition. It also suggests how self-government comes to be an apt counter-vision for American constitutional law, a theme both present and buried in American constitutional thought.
i.
Civic Humanism. -
(a) Universality and Existence. -
We
have seen that the linkage of citizenship with freedom has classical antecedents.' 8 0 We have also seen that in classical thought what ostensibly linked the two was an idea of the human telos no longer
readily acceptable. 181
A relatively nonteleological republicanism appears in history as an aspect of Italian Renaissance humanism.' 8 2 Humanism was, for its time, an antiteleological movement. It stood for human self-reliance and self-reference in the ordering of life and experience. Such ordering was to be pursued without resort to the transcendent comforts of cosmic necessity or divine plan.' 8 3 Yet humanism arose within a predecessor consciousness, medievally attached to essential natures and fixed orders - a consciousness in which the real and intelligible were equated with the universal and constant, and particularity and change spelled incoherence and illusion.' 8 4 In medieval terms, to know the world and oneself in it as real meant to see oneself as partaking in what is universal and timeless. In humanistic terms, participation in the universal could not mean taking one's preordained part or place in any transcendent order, whether Great Chain of Being 85 or eschatological drama of salvation.'
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, HistoricalIntroduction, in J. HARRINGTON, POLITICAL WoRKs, supra note 2, at I, I. 184 See J. POCOCK, MACHIAVELLIAN MOMENT, sura note 138, at 3-48; J. POCOCK, Civic Humanism 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 divine order of the universe; it was simply ... an incident in the human mind's unaided struggle with its own self-generated disorder." Pocock, HistoricalIntroductionto J. HARRINGTON, POLITICAL WORKS, supra note 2, at 20. "[The republic] was by definition that political form which aimed at 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 demands for objectivity and subjectivity, self-knowledge and self-creation, cognition and volition. It requires a humanly created order of active and diverse human individuals, but an order intelligible as universal and self-maintaining in a surrounding world of instability and chaos. (b) Self-Government, Common Good, and Civic Virtue. - What occurred, or so we are advised, was a revival of the Aristotelian idea of the polis, or republic, as an embodiment of the universal. Its universality lay in its exemplification of "human association as such, in which all types of men combined to pursue all human goods, their nature being such that they could be pursued only in association." 18 6 What made citizenship the highest form of activity was that the citizen partook of the republic's universality: "having entered the political process in pursuit of his particular good, [the citizen] now found himself joining with others to direct the actions of all in pursuit of the good of all; the attainment of his private good was not lost but 18 7 must take a lower priority." In sum, humanists found in the classical civic tradition the "means of asserting that the republic was a partnership of all men aimed at the realization of all values. If it was this it was a universal entity
....
"188
Deeply embedded in this conception are the elements of
general good (as the universal object of reason) and civic virtue (as self-direction according to that object of reason), which have come to seem definitional for the classical republican outlook. These elements, however, appear at this stage not as ultimate values but as inferences from a certain conception of an ethically and cognitively adequate life for the individual, or as conditions of such a life. The conception is associational and conversational. The universal is conceived as "immanent in participation in the web of life and language, and so the highest values... [seem] attainable only through
conversation and ... association." 18 9 "Morality was inherent in man
and human laws the result of his knowledge of his own nature.... [T]he political community was the necessary setting for such selfknowledge 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. 19 1 In its structure of cognitive, conversational, and volitional elements, 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. HeinOnline -- 100 Harv. L. Rev. 38 1986-1987
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family resemblance to the modern idea of freedom as self-government
through politics. 19 2 The resemblance becomes unmistakable in the
seventeenth-century republican restatement by James Harrington. Harrington, writing political theory during the English interregnum, is a pivotal figure in the history of the "Atlantic" branch of republicanism that would find its way to America. 193 Through his writings the classical tradition entered the canon of English political thought. Moreover, those writings set the conceptual and rhetorical terms for an ensuing political discourse, the so-called "Opposition" ideology that arose in England and passed to America during the 94 years preceding the American Revolution.1 Harrington wrote in his own moment of crisis: civil war and interregnum. The question of legitimate and effective authority in 9 England stood urgent and contested. 1 5 In good humanist style, Harrington rejected those answers of his time that invoked transcendent necessity. 19 6 The moment, for Harrington, was not one "of nature," at which to discover the compulsive physics of social order. 19 7 It was, rather, one of action and choice by the individual "searching for his own essence and seeking to define his own existence."' 98 What was now chosen ought, in the Harringtonian view, to sustain rather than foreclose the political conditions of self-defining action.1 9 9 The regime that does that is the republic. Harrington's argument was this: a person's mind is the field of both reason and passion. When passion rules "in contemplation," the
resultant "action" is "vice and ... bondage"; whereas "whatever was reason in . . . contemplation . . . , being brought forth by [the] will
into action, is virtue and freedom. ' 20 0 We know by now how the 20 argument will move to politics as the theater of individual freedom: '
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 integrity
and 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 the rational 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, at
169.
201 See Pocock, Historical Introduction to J. HARRINGTON, POLITICAL WORKS, supra note
2, at
64-65. HeinOnline -- 100 Harv. L. Rev. 39 1986-1987
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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 coexist socially. Through participation in "the debate of [the] commonwealth," 20 2 in joint pursuit of common interest and right, the individual gains both an object for self-directive reason and the dialogic 203 support required for its exercise in the process of self-government. Corresponding to the individual's "reason in ... contemplation" is "reason in the debate of a commonwealth." 20 4 As the active issue of reason is the individual's freedom, it is the commonwealth's law. 205 Hence the commonwealth - the true government - "is an empire of 0 2 6 laws and not of men." In Harrington's republican construction of freedom through politics, the objective principle and element of cognition is a presupposed "common right, law of nature, or interest of the whole which is more excellent, and so acknowledged to be by the agents themselves, than the right or interest of the parts only.' 20 7 The idea of a cognizable common good is thus a first objectivist moment in the classical republican theory of self-government. 20 8 Again, however, this idea, while crucial within the whole republican conception, is not its underlying concern; self-government is, and objective common good appears as a condition of self-government's possibility. (c) Independence and Corruption. - Republican deliberation, "reason in the debate of a commonwealth," is dialogic - an engagement of political equals who, whatever their possible diversity of situation, interest, or normative outlook, are united in their commitment to good faith pursuit of their common good and in their reliance upon each other's like commitments. "Corruption" breaks the spell. Corruption is the subversion, within the political motivation of any participant, of the general good by particular interest. By extension, corruption is also a participant's material dependence upon another's will - "the dependence of some . . .upon [others] when they should 2 9 0 be depending upon all and upon themselves." In Harrington's thought, the doctrine of citizen independence took the specific form of linkage between franchise and freehold (or, more
202
J. HARRINGTON, The Commonwealth of Oceana, in POLITICAL WORKS, supra note 2, at See id. at 171-72. Id. at 170.
170. 203 204 20s 206 207 208 209
See id.
Id. (crediting Aristotle and Livy). Id. at 171. We are going to keep count. See infra pp. 43, 47. J. POCOCK, Civic Humanism, supra note 184, at 87-89; see, e.g., J. PococK, Machiavelli,
Harringtonand English PoliticalIdeologies 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 epitomized). 2 10 This linkage is one major source of the attribution of elitist and aristocratic tendencies to classical republicanism. 21 But the tradition'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 of human association ... in which all types of men combine[ ] to pursue all human goods."2 12 The universalistic conception requires a "distribution 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 the republic is to distribute as widely as possible the secure material bases 2 14 requisite for independent citizenship. (d) Sovereignty and Immediacy: Law's Empire. - Harrington's description of the true commonwealth as an empire of laws and not of men 2 15 has, with slight emendation, become a fixture in the American constitutional creed. 2 16 But Harrington meant by his phrase something rather different from what we mean by ours. 2 17 His and ours 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
213
J.POCOCK,
J.POCOCK,
Civic Humanism, supra note x84, at 86.

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 agrarian law he envisioned for Oceana. (Oceana is Harrington's utopian England). An agrarian law is a redistributive inheritance law applicable to landed estates. See J. HARRINGTON, The Commonwealth of Oceana, in POLITICAL WORKS, supra note 2, at 231. Pocock suggests that Harrington would have been receptive to the possibility that nonlanded, commercial, mercantile and artisan property holdings might suffice, despite their apparently evanescent and socially dependent character (by comparison with heritable land). See J. POCOCK, Civic Humanism, supra note 184, at 91-92; Pocock, Machiavelli, Harringtonand English Political Ideologies in the 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 a seventeenth-century republican could go towards total political inclusion. Some people seemed to 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 this
description. 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, supra

note 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" ideas had 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 in such an approach. See Simon, Rights and Redistribution in the Welfare System, 38 STAN. L.
REV. 1431, 1486-1504 (1986). 215See 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 directed to the interests of the governed, not those of the governors. 2 18 There, however, the two concepts seem to part company. Where we invoke the ideal of1 9a politically transcendent law, not only neutral but also "objective"2 - the rule of law, in a roughly equivalent litany Harrington invokes "reason in the debate of a commonwealth"2 20 ; by which we are, I believe, to understand an inclusive, participatory, dialogic search for the reconciliation of difference in a universally 22 1 accepted common good. Thus, the essence of Harringtonian politics is immediacy. Quite simply, self-government is the business of the self, not to be displaced onto any distanced force, whether personal sovereign or impersonal law. Republican citizens "do not reduce self-government to self-preservation, and then transfer the power it defines to a sovereign representative." 22 2 After all, the justification of the republic is freedom, to be found in the process of self-government - not the freedom of rulers as a class apart (and certainly not that of the Laws) but the 22 3
freedom of each person as ruling and being ruled.
The question of legal rights standing above or beyond politics is, accordingly, one that gives Harringtonian theory much trouble.2 2 4 On
218 See, e.g., J. APPLEBY, supra note 89, at I6; J. HARRINGTON, The Prerogativeof 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 up to the public interest (which is none other than common right and justice, excluding all partiality and private interest)." J. HARRINGTON, The Prerogativeof PopularGovernment, in POLITICAL WORKS, supra note 2, at 401. Subjective and objective aspects of self-government are here locked 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, The Puzzling Persistence of Process-Based ConstitutionalTheories, 89 YALE L.J. io63 (i98o). This does not make republicanism's persistence puzzling. Its persistence is explained by its underlying aim of freedom. Freedom is not, however, a "substantive" justification for republican process if a justifying "substance" must stand outside the process it justifies. Freedom-as-self-government ignores 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 republicanism plainly prefigures the Marxist critique of abstract legal rights, see K. MARX, On the
Jewish Question, in EARLY WRITINGS 211 (R. Livingstone & G. Benton trans. 1975), and a
successor literature of our own day, see, e.g., Gabel & Harris, Building Power and Breaking Images: 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 Collective
Bargaining Law, 4 INDUS. REL. L.J. 450, 469, 478-79 (1981); Michelman, Justification (and Justifiability) 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 exclusive property rights) are republicanly abjured as obnoxious intervenors in the debate of the commonwealth, mediating what ought to be the immediacy of dialogue and converting the focal question from "what is the general good?" to "whose is that?" 22 5 On the other hand, Harringtonian theory cannot do without law and legal rights, and knows that it cannot - even if it also denies this dependency. In the first place, only law and rights can constitute the commonwealth. 22 6 To take just the most obvious instance, freeholding Harrington's paradigm of citizen "independence" - seems obviously an artifact of legal rights in our own straightforward, positive sense of institutionally secured, well-defined claims of entitlement. In the second place, the active issue of "reason in the debate of a 2 27
commonwealth" is and must be just what Harrington calls it: law.
It must be a universalistically law-like declaration of rights. It is the legal character that marks the output of the debate both as the product of reason and as the expression of the citizens' concrete universality, their reciprocal recognition of sameness-within-difference. 22 8 Deliberative political reason, it seems, must end by enunciating something
-
law -
that ought to constrain the deliberation itself. Thus law
joins common good as a second objectivist moment in republican self229

government theory.
-
(e) The Distributionof 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 Rights Debate in Analytical Jurisprudencefrom Bentham to Hohfeld, 1982 Wis. L. REV. 975, 1059. 225 See J. PococK, Cambridge Paradigmsand Scotch Philosophers: A Study of the Relations Between the Civic Humanist and the Civic Jurisprudentialinterpretationof Eighteenth-Century
Social 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 constitutional vision is a task that has never been completed. No republican revival in American constitutional law is likely to last very long without major progress in that task. There is no reason to think progress impossible. See Michelman, in JUSTIFICATION, supra note 224, at 9294. Although I do not take up the task directly in this Foreword, I can say at least (what must be obvious) that republican legal rights are bound to be concerned with participation, capacitation, 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, supra note 114; Michelman, Process and Property in ConstitutionalTheory, 30 CLEV. ST. L. REv. 577 (i98i); Minow, supra note 41; Schneider, The Dialectic of Rights and Politics: Perspectives from 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, Liberalism Rediscovered: A PragmaticDefinition of the Liberal Vision, 46 U. PITT. L. REv. 673 (1985).
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straightforward -
about as straightforward as serious political theory
is likely to be. One may or may not find agreeable, or feasible, or even transparently intelligible, its motivating idea of positive liberty or individual-freedom-as-collective-self-government; but accepting that much arguendo, the rest follows fairly easily. We come now to a feature of the conception that is not straightforward; rather, it seems mystified. The mystification involved will dog 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" constitution. Classical mixed government theory sees the universe of humankind, those who are to govern and be governed, as exhaustively composed of just three types: the one, the few, and the many. Constitutionally speaking, those correspond to the monarch, the nobility or aristocracy, and the people at large. 230 To each type is attributed its distinctive political virtue, or principle, or "mode[] of . . . intelligence." 23 1 The terms of attribution vary. For our purposes we can settle illustratively on leadership for the one, wisdom for the few, and experience or common sense for the many. The balanced constitution is one that aptly incorporates each principle into a scheme designed so that each is fully utilized but strictly confined to its proper sphere. The republican ideal of a governmental balance constituted of a few primal types had for its original motivation a metaphysical impulse (or so we may as well assume) - the impulse towards universality and constancy that we have already found present at the creation of civic-humanist republicanism. 232 If the three primal types are all there are in the political universe, then the balanced constitution constitutes "a universal political harmony. '23 3 Moreover, if instability is a matter of particularity, and there are only three particulars, then an equilibrium constituted of the three implies stability and constancy 234 in the ordering of human affairs. Harrington's thought about mixed government seems prompted not by metaphysics but by practical reason. His objective is to adapt the vision 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 republican thought along with much else drawn from classical sources. See generally J. POCOCK, MACHIAVELLIAN MOMENT, supra note 138, at 76-8o (discussing the early history of ideas of mixed government). Harrington adapted these ideas and later introduced them into the discourse of post-Restoration English constitutional debate, contributing to the doctrine of "virtual representation" 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 everpresent hazard of corruption. A frail citizen is all too likely to confuse particular with common interest. Needed is an order "of a government as... shall be able to constrain" citizens lured towards particularity to stand by the common good. 235 We want an order that "may, nay must, give the upper hand in all cases to the common right or interest, notwithstanding the nearness of that which sticks to every man in 23 6 private., Second, there is the fact that individuals differ in their talents and callings for government. Deliberating rightly towards the common interest - setting the agenda, defining and evaluating the alternatives is a difficult task. It takes "wisdom," by which Harrington plainly means the kinds of analytical and communicative strengths we would associate with fine legal counseling or policy analysis. Choosing among the alternatives, as analyzed and evaluated, is also hard, albeit in a different way. Such choices take knowledge - of the people, their situations, and their needs. Office should match capacity, for 23 7 all our sakes. The potential for corruption and the differences among individuals are two facts, and they are happily complementary. They also happily jibe with the classical troika: "The commonwealth consists of the senate proposing, the people resolving, and the magistracy executing." 238 Differentiation between the talents and motives of the few and of the many allows for a solution modeled9 on the well-known 23 rule for dividing one piece of cake among two: The wisdom of the few may be the light of mankind, but the interest of the few is not the profit of mankind, nor of a commonwealth. Wherefore [they who divide] must not choose, lest it put out their light. But as the council dividing consists of the wisdom of the commonwealth, so the assembly . . . choosing should consist of the interest of the commonwealth. As the wisdom of the commonwealth is in the aristocracy, so the interest of the commonwealth is in the 240 whole body of the people .... Harrington contends that if the few are restricted to "dividing" (that is, deliberating to the point of discerning, clarifying, and appraising the alternatives) and barred from "choosing" (that is, voting to decide among 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 at 174. Id. 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 restricted to choosing and barred from deliberating, they will choose well and accurately 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 representatives
and electors and each part, strictly confined to its assigned role, will
dependably perform that task well. 24 1 Moreover, each person acting
24 2 ment, realizing both the process of freedom and freedom itself.
in his role, even if merely electoral, will be experiencing self-govern-
Now, you, true democrat, may see here hierarchy, exclusion, and alienation ("self-government" by "representatives"!). But that is not at all, it seems, what Harrington saw. He was thinking and writing from within a tradition in which exactly this kind of distribution of office had long been regarded as inclusionary, an affirmation of the universality of the republic and of the good of self-government. From this point of view, mixed government was the realization of the Greek
ideal of isonomia, equality of rule. 24 3 It was a reconciliation of the
universal ideal of equality with the particular facts of difference each individual treading "his own path towards universality in association with a diversity of others treading theirs. ' 244 We cannot quite see it that way; not even Pocock's empathically inspired, intricate and subtle translations can quite bridge the gap between their political consciousness and ours. From our point of view, isonomic mixedgovernment theory seems a mystification; they were kidding themselves. Perhaps what made the theory work for them, although it cannot work for us, was telos - not only the idea that humanity in general has an in-built vocation for citizenship, but also the idea that individuals differ in their natures, including the forms of their political vocations, so that each has a distinctive role to play in a unified social whole. Teleology is a form of equality. Given man's civic telos, the arrangements of mixed government are not a hierarchy, not a rendition to each of that which is particularly his due, not the resolution of a conflict of powers or interests. These arrangements are, rather, an embrace, a "shar[ing] in the possession of a common, public personality,
. .
. the formal structure within which political nature develop[s]
Elections of representatives are envisioned as strongly participatory, public events. Broad distribution of the good of participation is supported by proliferation of
minor 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.
241 Id. at 172-73. 242 See id. at 172-74.
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, POLITICAL WoRKs, supra note 2, at 64.
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to its inherent end. '2 45 Thus the Harringtonian distributions of civic virtue and articulations of office are a third objectivist moment in republican self-government theory. (f) The Deep Tradition Summarized. - We can now see the classical Harringtonian republican conception as composed of seven principles or impulses: (i) self-government; (ii) practical deliberation or dialogue; (iii) equality (of ruling and being ruled); (iv) antistatism (immediacy); (v) rationally cognizable values ("the general good"); (vi) a mechanistic, role-differentiated constitution - balanced government and proprietary independence ("civic virtue"); and (vii) action by promulgation of laws. At the heart of the conception, motivating the whole, is the first principle: positive freedom realized as self-government through politics. Structured about the conception are three matched pairs of impulses in tension (ii-v, iii-vi, iv-vii). The first member of each pair expresses a subjective or volitional moment of self-government. The second expresses a corresponding objective or cognitive moment. The three subjectivist impulses (ii, iii, iv) together describe republican's participatory side. The three objectivist ones (v, vi, vii) together describe its lawful side. The objectivist moments - common good, civic virtue, and legality - are all essential to the Harringtonian conception but not fundamental within it. They are conditions of the possibility of selfgovernment, for human beings situated in society and history. The possibility of self-government itself has the visionary status not of an asserted fact but rather of a felt necessity. The objectivist moments, however problematic, are what must be true, or possible, if selfgovernment is true or possible. The deep republican tradition thus prefigures the modern dilemma of freedom, 24 6 although without modernism's Enlightened sense of resistance against the oppressions of 24 7 assigned social role and determinate social truth. C. The Proximate Tradition and Its American Reception
i. Opposition Ideology. - At least two distinguishable strains of republican discourse had appeared in England by the time of the American Revolution. The older was the participatory, civic-republican strain infusing Harrington's works of the 165os and '6os. The newer 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 quite different 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 predominantly positive-libertarian motivation for a predominantly negative-libertar24 8 ian one. Opposition ideology began as a language of conservative political grievance, prompted by the post-Restoration emergence of modern 249 executive government as an actively transformative social force. What had been a diction of visionary aspiration became also one of the complaint of the moment. Moreover, the complaint was not, at bottom, that modern government denied its citizens the experience of ruling and being ruled, but that it represented a disturbance or threat to one's personal position in the general order of society, and to related notions of traditional right. Antistatism remained in the rhetoric, but its sense was transformed. In Harringtonian thought the sovereign state, as a government of rulers separated from the ruled, is objectionable as alien authority, denying self-government. 250 In Opposition thought the executive state, with its concentration of means and influence, becomes suspect as excessive power, endangering the interests and rights of subjects. For Harringtonians, sovereignty is conceptually the. antithesis of political liberty. For the Opposition, government 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 seems to 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, THE
EIGHTEENTH 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 newer movement in Opposition thought, see, e.g., S. LYND, INTELLECTUAL ORIGINS OF AMERICAN RADICALISM 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 HISTORY 51, 70-71 (1985) [hereinafter Authority and Property]; Banning, Jeffersonian Ideology Revisited: Liberal and ClassicalIdeas 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 governmental credit financing; and a general sense of a government-supported shift of power and status from land-owners to the mercantile and financial classes. See, e.g., J. POCOCK, MACHIAVELLIAN 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 American versions 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; the latter receptive to sovereign government, under some kind of ultimate popular control. 25 1 The Restoration and the Glorious Revolution settled that debate, at the level of practice if not vision. Liberal sovereign institutions plainly prevailed, perhaps reflecting a widened distance between the business of governing and the economic and cultural preoccupations of ordinary life among the advantaged classes - sov25 2 ereignty grown apart from modernizing "economic and social man." 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 expression in a classical republican vocabulary. Preservation of rights became the common good. Devotion to this common good became civic virtue. Republican "balance" - beginning its historic transmutation into Madisonian checks and balances 25 3- became an "oppositional interpretation of the parliamentary constitution" according to which Parliament checks the Crown rather than combines with it as King-in-Parliament. 254 Thus in Opposition rhetoric the common good, consisting of protection for rights and liberties, could be achieved through respect for the established forms of the balanced constitution. 25 5 Commitment to that work was civic virtue. Self-serving distraction from it was corruption. In the English constitutional balance, it was Parliament's function to supervise and limit the ever-encroaching executive, that is, the Crown and its ministers. Parliament was failing in this office, because of corruption. 25 6 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 Relations Between the Civic Humanist and the Civil JurisprudentialInterpretation Eighteenth-Century of Social Thought, in WEALTH AND VIRTUE: THE SHAPING OF POLITICAL ECONOMy IN THE SCOTTISH ENLIGHTENMENT 235, 248-49 (1983); J. POCOCK, The Mobility of Property and the Rise of Eighteenth-CenturySociology, in VIRTUE, COMMERCE, AND HISTORY 103, 107-O8 (1985) [hereinafter Mobility of Property]; J. POCOCK, Authority and Property, supra note 248, at 5556. 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 relations are designed so that each will be prevented by others from invading the rights of citizens. See generally 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 a doctored representational scheme with its rotten boroughs. As a result, Parliament was seduced into support of various schemes - national debts, standing armies, excises - disfavored by
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republican themes - common good, civic virtue, participation, independence, corruption, and balance - but they were now being used in the service of self-protection against the government: negative liberty.
25 7
Users of this rhetoric of grievance came to include not only conservative country gentry but also radical dissenters and civil libertarians. 258 Together they became known as "commonwealthmen," from9 25 their historical ties to English radicals of the Commonwealth period. It was their republicanism that, by the standard histories, crossed the sea to the receptive ears of colonists aggrieved by excises, mercantile restrictions, rumors of Anglicanization, heavy-handed royal 260 governors, unresponsive privy councillors, and lack of representation. 2. The Puzzle of Representation (a) The Target: Virtual Representation. - Whenever sovereignty is an accepted fact and self-government an asserted value, a chief issue of politics must be that of the relations 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 authoritarian monstrosity. See J. POCOCK, Mobility of Property, supra note 251, at 66; G. WOOD, supra note 230, at 170, 201; cf. B. BAILYN, supra note 248, at 129-30 (describing American versions or echoes 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 an intermediate 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, MACHIAVELLIAN MOMENT, supra note 138, at 474; Shalhope, Republicanism and Early American Historiography, 39 WM. & MARY Q. 334, 334-36 (1982) (describing "libertarian republicanism"), if not so unambiguously as the express limitations on governmental authority which were soon to become an 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 as an essentially negative - not positive - libertarian ideology: Only those who place themselves whole-heartedly in the service of their community are capable of assuring their own liberty.... Personal liberty . . . depends . . . on preventing the [rulers] from coercing the [people] into serving their ends. But the only way to prevent this from happening is to organize the polity in such a way that each and every citizen is equally able to play a part in determining the actions of the body politic as 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 the views 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 impressive variety of republicanisms in early American thought, but casts no doubt on their generally negative-libertarian leanings. Shalhope's synthesis of the whole body of literature is that "liberal and classical ideas existed in constant tension. They shaped and influenced each other until the end result was a bastardized form of each." Id. at 350.
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unless - perhaps - the rulers represent the ruled in some requisite sense. A representational theory seemingly well-suited to the coexistence of unchallenged sovereignty with the republican notions of general good, civic virtue, and constitutional balance, is that of virtual representation. Virtual representation doctrine reached its ultimate synthesis as the British response to colonial objections against taxation by a Parliament in which Americans were voiceless.2 6 1 As such, it became an object of scorn and execration in the colonies. 2 62 Yet, as we shall see, the idea of virtual representation has never, in principle, 263 been finally rejected by Americans. The doctrine of virtual representation asserts that one can be represented in a political regime in which one has no actual participatory role, not even as an elector, through the participation of another who is one's likeness. 2 64 Its appearance in eighteenth-century political discourse reflects the fact that representation in the House of Commons 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 lens of classical mixed-government theory, this circumstance presented no fundamental difficulty.2 66 The commons ("the many") were too many to be present as a body. No matter, as long as they were envisioned as a fungible collection with characteristic insights and outlooks. On that condition, all commoners could be considered virtually present through that portion of their body that was actually present. Through their virtual representation, the commoners' viewpoint was involved 2 67 in the constitutional balance. Virtual representation illustrates well how the republican notions of common good, civic virtue, deliberation, and independence are conceptually severable from the republican value of self-government. Regarded as an adjunct of classical mixed government theory, virtual representation logically compels an understanding of the parliamentary Member's office as obligating him to act deliberatively, with a view to 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 representation that is somewhat more particularized than "the one," "the few," and "the many." See H. 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 mercantile or 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 logically compel, but does intuitively keep company with, a strict "Burkean" view of the office as one calling for the Member's exercise of 269 personal judgment independent of constituent views or instructions. Such a view, although it entails the notions of the empire's general good 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 representation. Virtual representation may deny self-government, but for such a citizenry, self-government is not the point. The point is that governmental power should respect one's interests or hearken to one's views; any group of reasonably capable, like-minded, and determined Members can accomplish that for us all. (b) The Arguments: Virtual vs. "Actual" Representation. - Nevertheless, virtual representation did become a target of polemical attack by both British Oppositionists and the American proto-revolutionaries who took up their ideas. The attacks took various forms and rested on various grounds. Some were immanent critiques, accepting virtual representation in principle but complaining of betrayal of the principle in practice. Others were radical critiques, denying the validity in principle of virtual representation and demanding "actual" representation in its stead. A first immanent critique focused on defects of apportionment epitomized by rotten boroughs. Its argument was that a scheme so susceptible of arbitrary manipulation could not be relied upon to produce an independent House, able and determined to inject into the constitutional balance a strong principle of resistance against executive encroachment. 270 A second immanent critique focused not on manipulation as a threat to independence but on an actuality of misrepresentation. The genius of "the many" is their direct knowledge of the interests and needs of the people - knowledge that can be counted upon to make their "choosing" compatible with those needs. 2 7 1 The balance, 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 its general, national interests).
269See E. BuRKE, BuRKE's POLITICS 115 (R. Hoffman & P. Levack ed. 1949) (speech to
the 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 apportionment according to population is a prophylaxis against political intrigue, prefiguring a major inspiration for 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, '2 72 as seemed obviously true in the case of Americans supposedly represented by inhabitants of Great Britain. 273 A third immanent critique is more process-oriented. It says that the knowledge and determination required to resist encroachment depend not only on independence from the executive but also on direct and palpable reinforcement from with the people. It thus demands large assemblies (small constituencies) and frequent elections. 274 In these respects it leans towards participation, but still as an instrument of control 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 According to all, governing is for governments, and the problem is to construct a government that will serve and respect the interests, rights, and general good of the governed. The governed hold those interests and rights in common, enough so that a select group of them, deliberating in good faith, can discern what they demand by way of policy. If there is disagreement among the immanent critiques, it is over the mechanics of picking and motivating the select group. Before and after the Revolution, other voices called for something called "actual" representation. These demands also took multiple forms. One version, reminiscent of Harrington, 2 76 sought to reconcile the accepted institutional necessity of representative government with the desire for actual self-government by all the people. With sufficiently numerous and well-drawn constituencies, this version's proponents contended, the assembly could be the people's portrait in miniature, feeling and thinking just as the people do in all their plurality, acting just as the people would if actually present. Moreover, through such a system people could recreate the true republic of full and constant popular self-government. The people would always be present "in effect," not merely checking the government but being it.2 7 7 Consent would flow continuously, not just in election day
272G. 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 the extreme, it is as if the wrong country is represented. American conditions, needs, interests, and outlooks were simply too different and distant from those of the home country to make virtual representation by Britishers credible to Americans. The immanent, non-radical character of this complaint is attested by Edmund Burke's support of it. See I R. PALMER, THE AGE OF THE DEMOCRATIC 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 proposals). 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 an 278 alienated sovereign but from self-legislation. Taken literally, actual-representation theory in that form seems delusive, insisting that the absent are present, the passive active. Yet, just as with Harrington, we can find a less mystified reading 279 one in which popular participation is indubitably actual, although its main arena is not the formal legislative assembly, but rather a dispersed and continuous process of political discussion among coconstituents, and between them and their representatives. The characteristic images are of taverns and town meetings, the people out of doors comparing candidates, debating policies, formulating instructions. For Americans alive and active in the extraordinarily politically excited period of the I76os and '7os, these would have been realistic pictures of self-government. There was also in the field, then or a little later, a quite different form of actual-representation theory, seemingly most unrepublican in dispensing with common good and civic virtue. According to that version, constituencies have varying, parochial interests. They can be represented only by persons who will speak and act for those local interests in affairs of the central government. 280 By clear implication, those affairs cannot, in this view, be classed as deliberations. They are instead transactions. This view is incipient pluralist theory. 28 ' Regarded at the level of what we can call daily government, it is republicanism's antithesis. Yet it also invites a visionary splitting of civic personality, in a "dualist" conception that might contain more self-government than any form of across-the-board representation. In the dualist view, day-to-day government is by representatives and is pluralist; but there are also moments of extraordinary civic engagement, in which an actually participatory people give themselves their
282 highest law.
(c) The Outcome. - Which of these theories, if any, prevailed in the Constitution is, of course, a question subject to continuing interpretative debate. On one view, 283 the Constitution is simply and
thoroughly pluralist. Legislators can represent "actually," because what they represent is not persons but interests. 284 The representative's task is to advance the represented interests through coalition,
supra note 248, at 171-75. 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 OF JAMES WILSON 781, 786-788 (R. McCloskey ed. 1967). 280 See G. WOOD, supra note 23o, at 188-96. It is, therefore, entirely appropriate to bind these 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).
278 See B. BAILYN, 279
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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 maximized, in some sense that is hard to define. Be that as it may, there 285
is, in the pluralist view, no other general good.
On another view, the constitutional scheme is one of "deliberative democracy"28 6 - a mechanism for selecting and motivating representatives who will display, or simulate, civic virtue by deliberating capably and sincerely towards discernment and enactment of the general good, with perhaps some leaven of barter among parochial interests. 28 7 Thus strictly understood, the scheme is not one of self-government. Indeed, its objectives might, in principle, be fully served by a virtual-representation system in w-hich the constituencies were not coextensive with the citizenry. 288
These two conceptions pluralism-and deliberative democracy
are the more "realistic" contestants in current interpretative debate. There is other scholarship supporting a somewhat more Harringtonian reading of the constitutional scheme as designed to engage the civic virtue and accommodate the self-government of the people at large through their electoral and instructional roles. 289 And there is, finally, scholarship supporting the dualist design by which self-government is 290 preserved in constitution-making.
m.
REPRESENTATIONS OF VIRTUE
A. Self-Government in Constitutional Vision In what sense is the United States Constitution, as construed, a charter of self-government? Most obviously, the Constitution to some extent protects individual and group autonomy by curbing the powers of federal, state, and local governments. 2 91 Moreover, some judicial
285 For discussions of pluralist theories of constitutionalism and the general good, see Michelman, 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, supra note 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. City of 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 effort in National League of Cities v. Usery, 426 U.S. 833 (1976), overruled, Garcia v. San Antonio Metropolitan 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 individual autonomy may be understood as doing so for the sake of enabling local political communities to make their own value-determinative choices.292 The conflict between these two principles - of "individual" and "community" self-determination - reflects a characteristic tension in the general concept of self-government. 29 3 A Constitution in whose name such a tension was aptly sustained might be called a charter of self-government. Yet the Constitution, in this account of it, supports self-government only by way of exclusion. The account envisions self-government as a process beyond and opposed to the processes that the Constitution affirmatively charters, a process to be protectively bounded off in a realm safely apart from that of government in the ordinary sense. This separated realm we call "private," meaning to demarcate it clearly from the "public" realm of the government 2 94 proper. Thus the question remains: where, if anywhere, can we find selfgovernment inside the Constitution? To regard constitutional limitations as an insufficient guarantee of true self-government is not to deprecate the realm of the private or to seek its fusion, in concept or in doctrine, with that of the public. 295 One may simply consider freedom incomplete without public as well as private self-government. More strongly, one may doubt the possibility of private unaccompanied by public self-government. 29 6
against federal government incursion plainly reflects judicial concern for self-government at the
state and local levels. See Garcia, io5 S. Ct. at 1021, 1027-29 (Powell, J.,dissenting) (invoking the antifederalists). However, federal constitutional protection of political autonomy at the statehouse 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, PoliticalMarkets and Community Self-Determination: Competing JudicialModels of Local

Government Legitimacy, 53 IND. L.J. 145, 95-99 (1977-1978). A frightening and outrageous
example - 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 to
differentiate 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, at
1099-1120.
Compare Reeves, Inc. v. Stake, 447 U.S. 429 (198o) (holding that a state is less
restricted 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 Republican 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 "this Constitution 29 7 is undeniably baffling (not to say wistful), because the document so obviously charters not a participatory democracy but a sovereign authority of governors - representatives - distinct from the governed. Moreover, most people have trouble imagining, or imagining the framers imagining, how it might have been otherwise in practice. 298 That the question is not abandoned, despite its baffling quality, may attest to the depth of both the wish for freedom and the perception of freedom's dependence on self-government. For whatever reason, answers keep coming to this question of locating self-government in the Constitution. Most familiar are those that echo classical republican isonomia.29 9 Answers of this sort envision the people at large engaged more or less regularly in politics. Their communications among themselves produce communications to the government, not only in the form of election-day votes but also in petitions, lobbies, mass media reports, opinion surveys, and so forth. Moreover, the Constitution itself is construed to support precisely this communicative process. The Meiklejohn-Brennan reading of the first amendment as a guarantee of the free flow of ideas, in support of popular self-government, is such a reading of the Constitution. 300 Some recent scholarship contends that isonomic participation extends not just to matters legislative but to matters juridical, 30 1 that is, to the making of constitutional and common law. Political participation of this sort is certainly valuable. However, for some searchers 30 2 - including some who fully accept the need for sovereignty and do not advocate its radical replacement by participatory 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 Van Alstyne, InterpretingThis Constitution: The Unhelpful Contributions of Special See 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, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT (1948); Brennan, The Supreme Court and the Meiklejohn Interpretationof the FirstAmendment, 79 HARv. L. REv. 1 (1965); Hastie, Free Speech: 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, in which expressive communication is valued not only as a mode of enlightening citizens on matters of public policy and of communication between citizen and government but also as a mode of self-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 civic tradition, rather than over against it, we can learn to get more selfgovernment out of it. B. Economies of Virtue Civic virtue can be understood as a certain combination of motivation and ability: the motivation to deal with public questions by sincere engagement in deliberative colloquy aimed at discernment of the general good, and the ability to do it well. Assuming that civic virtue is in shortage - that there is too little in the aggregate to support a successful direct-democratic republic - how might a constitution contrive to economize on the available supply? The inevitable answer to the problem of economizing on civic virtue is representative government, especially in light of the formidable practical barriers to direct democracy in countries larger than the canton of Geneva. 30 3 From here on, however, the principles of the economy of virtue vary according to the designers' imaginations. According to Cass Sunstein, James Madison's basic idea was to ensure that the limited supply of civic virtue resided in the people responsible for the day-to-day decisions, the representatives. 30 4 Redistributing civic virtue would be difficult, if not impossible, but it may be possible to arrange that the persons who start out with relatively large civic virtue endowments become the representatives. Perhaps this can be accomplished by creating an "extended" republic with a relatively small legislative assembly and relatively large electoral constituencies. 30 5 In large constituencies, as in extended states, the complex diversities of interests, combined with difficulties in communication and coordination among political allies, are expected to hinder factional coalescence. 30 6 When the problems of coordination thus render it very difficult to pursue particular interests through political action, citizens' underlying but weak perceptions of the public good have a chance to become effective motivators, both within the
303 Geneva was Rousseau's model for the participatory republic depicted in The Social Contract. 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's views 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, supra note 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 FederalistNos. 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 exploitative 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 representatives. 30 7 Thus the representatives will "have the virtue asso3 8 0 ciated with classical republican citizens." The main conclusion Sunstein wishes to draw is that Madison's solution was emphatically not to "accept the interest-group struggle as a desirable part of politics that would promote social welfare." 3 09 Rather Madison kept republican faith with the ideals of an objective public good 310 and of the pursuit of this good through political deliberation. 3 1 ' Having thus located in the Constitution this republican conception of politics - as a joint, good-faith deliberation about the public good - Sunstein urges that this conception both supports and suggests reform of the doctrine of judicial review of the "rationality" 3 12 of statutes and of various aspects of administrative process. According to Bruce Ackerman, the framers' plan for economizing on civic virtue was quite different from the one Sunstein depicts. In Sunstein's reading, the plan is to concentrate civic virtue in the representatives. In Ackerman's reading, the plan allocates civic virtue to each citizen. It envisions each citizen as divided, acting sometimes as a "private citizen" devoted to public affairs and sometimes as a "private citizen" preoccupied with his own affairs. 3 13 The economizing strategy that Ackerman attributes to the framers is to conserve each citizen's short ration of civic virtue for use when it counts. Ackerman apparently wants to explain how the Constitution contrives to make Americans actively self-governing, if only to a limited extent. He expects that by showing us how the framers envisioned the possibility of self-government - occasional only, but actual and immediate when it 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 selfgovernment to the representatives; they are the ones who "have the
307 It is expected that electors will choose well-qualified representatives and that the system will "refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations." 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 41
n.56.
310 In Madison's famous words, "the rights of... citizens [and] the permanent and aggregate interests 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." 3 14 Sunstein's conception gives a new meaning to "virtual representation." By contrast, Ackerman's conception, if successful, confirms self-government - the actual, freedom-bearing experience - for the national citizenry at large. It is not clear, however, that Ackerman's project succeeds, or
that it possibly can. It may contain, unavoidably, a twist on "virtual

representation" more surprising than Sunstein's. C. The People, Where? In his Storrs Lectures,3 15 Ackerman endorses the value of positive 3 16 liberty - of political dialogue as a mode of individual freedom. However, if we inquire closely as to where the practice of dialogic self-government most credibly appears in Ackerman's visionary picture of constitutional practice, we come to a curious answer: in the judiciary. Ackerman urges interpretation of the Constitution as contemplating, and of The Federalistas advocating, a "two-track" system of lawmaking. The first track, "constitutional politics," consists of those relatively rare moments when the people are genuinely aroused to political issues they regard as fundamental. At these moments, the people mobilize themselves to the intensely deliberative, public-regarding frame of mind expected of republican citizens. 3 17 We the People actually speak. The second track, "normal politics," is the doing 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 claims for the proposition that Madison contemplated representatives deliberating toward the public good, does not agree with Sunstein that Madison "willingly abandoned the classical republican understanding 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's diction 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 responds to an "ongoing problem of self-definition," id., and "provide[s] us with the language and process within 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 their effort to devise constitutional arrangements that would motivate or simulate governmental virtue even amidst private-regarding citizens and officials. See supra notes 304-32 and accompanying text. If The Federalist is to be believed, the framers thought they had succeeded. If so, the reasons for the reservation of constitution-making to the citizenry at large, on which Ackerman places 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 that demand attention without diverting the people at large from their private preoccupations. 3 18 In normal politics, public-regarding conduct is welcome but not usually expected. Normal politics consists, rather, of privately self-serving "pulling and hauling. '3 19 Its predictably nonvirtuous character is, indeed, the reason why it must be kept obeisant to the past constitutional mandates of the civically aroused people. On matters of constitutional moment, we want to hear from 3 20 Philip sober. Ackerman contends that constitutional politics occurs outside as well as within the formal processes established by article V for amending the Constitution. He argues that when such constitutional politics occur, what they produce merits judicial recognition as a "structural amendment." 3 21 A structural amendment results when "a sustained period of extraordinary institutional conflict" confers "legitimacy" upon 322 an evident change in constitutional understanding. The New Deal period of overthrow of laissez-faire constitutionalism - the progress from Lochner v. New York 323 to West Coast Hotel 3 2 Co. v. Parrish 4 - is Ackerman's foremost example of both constitutional politics and structural amendment. It was a time of exceptionally excited political events - including the enactment of New Deal legislation, the resistance of the "old" Supreme Court, the Administration's perseverance in the face of judicial reprimand, the electoral mandate of 1936 (construed in light of the events preceding), and the judicial volteface of 1937. The Administration proposed new departures; the Court signaled to the country their constitutional significance; Congress and the people reconsidered the proposals, debated the merits, examined alternatives, and in the process clarified constitutional meanings. Finally the people decisively registered their will, and the concurrence of all three governmental departments was ob3 25 tained.
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: I Appeal. 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, 2000 FAtous 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 structural amendment, 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 public concern of exceptional breadth, intensity, and duration, which may be marked by the people's resort to irregular forms or procedures; and second, the people's persistence in spite of ordinarily conclusive defeat in legislative politics or in constitutional adjudication (or the people's electoral endorsement of those who have thus persisted). Ackerman believes that the two-track conception reflects the framers' combination of republican aspiration and doubt about the people's capacity for sustained public-spiritedness. It is their design for "economi[zing] on virtue. '326 To that extent it depends on a normative conception of citizenship coming straight from the republican tradition. I have already suggested that Ackerman's ultimate aim in his research is to reinvigorate the concept of citizenship. 3 27 He aims at the same time to relegitimate constitutional law. The entire project is launched as a defense of Alexander Hamilton against Alexander 328 Bickel, in a dispute over the democratic basis of judicial review. According to Hamilton, the Constitution speaks the democratic will 329 of the sovereign people, which binds both Congress and the courts. Bickel objected that "the people" in that formulation is an "abstraction" mystically obscuring the "reality" that the law under judicial scrutiny has been enacted by the actual representatives of the actual people. 330 Ackerman's first - and not at all bad - rejoinder is that "the people" are no less abstracted in congressional law-making than in 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 a 33 2 reason why the more recent emanation should not prevail. Ackerman argues that this "intertemporal difficulty" 3 3 3 dissolves if the two media of popular will stand on different ontological levels. Thus his tactic is to discredit the congressional medium while accrediting 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 "standing in" for them during their vacations into privacy - carrying on workconflict and thereby allow[] Americans to place a constitutional meaning upon a sustained series of electoral victories and legislative successes that is very different from the meaning ordinarily attached to any single episode of normal politics." Id. at 1055-56. 326 Id. at 1031.
327 328 329 330 331 See supra pp. 59-60. See Ackerman, supra note 65, at 1013-14. See THE FEDERALIST, supra note 9i, No. 78, at 525 (A. Hamilton). A. BICKEL, supra note 64, at 16-17, quoted in Ackerman, supra note 65, at 1013. See Ackerman, supra note 65, at 1029.
332 See id. at 1045-47. 333Id. at 1046.
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aday government for them but in no way as them. 334 Conversely, he recalls for us the vividness of "the people out-of-doors 33 5 and plausibly suggests that the people are really present in their moments of constitutional excitement, not in their ordinary distraction. In a total reversal of Bickel's view, Ackerman finally demystifies representation: 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 representative in the most straightforward sense, their commissioner to "prevent the abuse of the People's name in normal politics" by "standins" who misrepresent themselves as the people by acting in contravention of the people's constitutionalized will. 3 3 7 Judicial intervention on these terms is not "ancestor worship," but rather the "presentoriented project" of giving to the actual people the opportunity to "modulate the democratic authority they accord to the elected repre'338 sentatives who speak in their name. So far, Ackerman's model offers no assurance that the Court invalidating a statute as unconstitutional conveys the true meaning of enacted "constitutional achievement[]. " 339 The question of legal interpretation remains. Ackerman starts his answer obliquely. He notes that strained judicial readings of received constitutional texts give aid and comfort to "legal nihilism," by "playing so fast and loose with the traditional disciplines of legal interpretation as to make the entire notion of interpretation seem utterly fraudulent."3 40 He then offers the notion of structural amendment as relief for this embarrassment. Only a "structural reinterpretation of the 1930's," he suggests, can avoid excessively strained readings of textually explicit, long-respected constitutional commitments respecting contract, property, and states' rights. 3 4 1 If we can see that a structural amendment occurred during the 1930's, then we can also see that those earlier constitutional commitments have more recently been "profoundly revised" by constitutional law-making. This recent law-making provides direct constitutional 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 AND
JUDICIAL REVIEW 17-25 (i966) (describing the arguably "undemocratic" nature of Congress and the 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, supra note 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 342 tation. ,
. .
.at the cost of trivializing the process of legal interpre-
This explanation is good as far as it goes, but the problem of interpretationso far remains untouched. What, after all, is the "revision"? What is its meaning? "Clearing historical rubble" through recognition of structural revision seems good but leaves us yet to give content to the "principles that do remain" as higher law.343 How does the Court make justifiable sense of the remaining constitutional themes? Ackerman's answer is that we have to: [explore] the complex ways in which [all the remaining] themes have
been transformed by ... new constitutional principles proclaimed in
the name of the People during the nineteenth and twentieth centuries .... We must organize into a coherent whole all the higher-law
principles enacted by the People in the course of two centuries of constitutional politics - most notably those advanced in response to the very different constitutional crises engendered by the American 344 Revolution, the Civil War, and the Great Depression. Although Ackerman does not so name it, he is proposing the method of narrative as the key to legal interpretation. 345 Think of an individual choosing a course of action, composing a current sense of personal identity or character by integrating the multifarious episodes of a remembered past into one coherent personal "story." Now think of the political community, needing to make current sense of its law in order to carry on with the next case, integrating the multifarious episodes in its remembered legal past into the coherent normative "story" of a unified political "person." By so situating ourselves, or our community, in a particular history, we supply ourselves with the objective or cognitive element required for ethical choice. Narrative is a tool of self-knowledge, practical reason, self-government, and positive freedom. It seems an entirely plausible and appealing proposal for jurisprudence, by no means peculiar to Ackerman among 34 7 legal theorists, 34 6 and certainly not the special discovery of lawyers.
342 Id. at 1071.
343 (emphasis in original). Id. 344Id. (emphasis in original).

345See 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 it and give it meaning. For every constitution there is an epic .... Every prescription is insistent in its demand to be located in discourse - to be supplied 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 end in experience, in the narratives that are the trajectories plotted upon material reality by our 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 interpretation raises, in the context of his particular project, some puzzling questions. Whose is the story being constructed? What ensures that there is only one story? Given that someone has to compose or select the story, who is that author? In this whole narrative process, who and where are "we"? Certainly the author is not "We the People" in anything like the 348 It demystified sense that allows Ackerman his victory over Bickel. would be fantasy, not history, to imagine the People in the 193os consciously or responsibly engaged in reintegrating, and thereby transforming, the meaning of all past constitutional events. Those past events were, after all, several and disconnected responses to "very different constitutional crises, '349 at least as plausibly a severalty as a unity. Yes, one can say, and with force, that what matters, what the People "meant," lies not in what they thought or intended but what they said and did. 350 But what gives that proposition its force is the sheer need for intelligibility, for integrity, as a condition of justifiable 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 be justices. It is they who are finally envisioned as the active practical reasoners and ethical self-governors. The Court at the last appears tation and trace of the People's absent self-government. 35 2
not as representative of the People's declared will 35 1 but as represen-
348See 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 way down"); see id. at 339-40; infra pp. 75-76. That self-government resides finally in the judiciary is not, of course, Ackerman's declared message. His message is that the people are self-governing in 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 political self-government on a continental scale in modem, mass conditions. We get a picture of the people roused to intensity of public-regarding civic engagement but get no explanation of what it might be about this mass experience that would make it self-government rather than domination. Consider the case of the proposed equal rights amendment. No doubt the proposal occasioned intense and widespread involvement and attention, and no doubt the talk was publicregarding in the sense of focusing on matters of public value and public law. Still the episode seems to have been more one of ideological closure and manipulation, in the company of ordinary tactical politics, than of self-recognition and redirection through open and empathic intersubjective 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 have understood themselves as self-legislating or self-determining in the aftermath of ratification of a HeinOnline -- 100 Harv. L. Rev. 65 1986-1987
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D. Whose Integrity? The strange twist in Ackerman's Storrs Lectures - the migration of self-government from the people to the Court - occurs at the point at which the lectures resort to a narrativistic method of legal interpretation. 35 3 Although Ackerman commends such a method, he does not undertake systematic exposition or defense of it. A leading current source of such exposition and defense is Ronald Dworkin's Law's Empire.35 4 Consideration of Law's Empire confirms, I believe, a link between the attraction of such theories and the judiciary's role in representing to the community self-government in practice. In Dworkin's conception, a legal claim or argument is an interpretation of the community's current law, viewed in its entirety and in historical setting. The claim "interpret[s] contemporary legal practice seen as an unfolding political narrative. '35 5 Dworkin calls this conception "law as integrity," 35 6 and for him integrity in law means fitting current legal decisions into the whole prior history of the community treated as a single normative subject or ethical agency. Legal integrity requires that the judge "identify legal rights and duties, so far as possible, on the assumption that they were all created by a
single author 3 7 5 conception of justice and fairness." Dworkin's account holds that legal propositions are true "if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community's legal practice. '35 8 "Best," in this formulation, contains an element of judicial subjectivity - the judge's own political vision - as well as of "fit" with the given legal data. 35 9 Dworkin
the community personified -
expressing a coherent
Constitution expressly overriding what many of them considered to be the conditions of their own future self-government. See H. STORING, supra note 75, at 5, 7-8, 10, 48-52. I do not deny the possibility. I only say that Ackerman does not in his Storrs Lectures explain it or explore 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 OF PRINCIPLE (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" - for example, a case of two intersecting lines of precedent, or one that appears to be governed by a new, vague, or ambiguous statutory formula that could plausibly be read in either party's favor. His theory advises the judge to place the problematic materials in the context of the community's whole prior legal history.360 This history includes constitutional and statutory texts, judicial decisions applying these texts, common law decisions, secondary explanatory matter such as judicial opinions and legislative history, and all the community's evolving paradigms for relating and ordering such materials - for example, by time of origin or hierarchical level of issuing authority. The judge is then supposed to derive from this context the coherent set of normative principles that makes the "best" sense of its contents as a whole. Dworkin says that a judge approaching the task of legal interpretation in this narrative spirit will find the experience one of both personally responsible choice and extra-personal constraint. The element of choice occurs because no explanatory set of principles will fit the data perfectly. There are, therefore, likely to be several that fit well enough to seem competitive. In selecting among these, the judge must consider how well each set of principles justifies - in a substantive sense - the community's "moral authority to assume and deploy a monopoly of coercive force," 3 61 because that is the project in which the judge is engaged on the community's behalf. Such consideration necessarily draws upon the judge's own, personal, nor3 62 mative outlook. Even so, says Dworkin, from this judge's internal, experiential standpoint there will be, as it were, a "right answer" to the question. Dworkin draws an analogy to a literary critic engaged in interpretation of a richly suggestive novel. The critic is not "free" to give the book any reading at all, but rather seeks a reading that makes it the best that it can be for a reader in the critic's own historical and cultural situation. Such a critic will experience a feeling of constraint, 363 and so will the judge following Dworkin's instruction. Dworkin finds
The question which features they have, in virtue of which they combine as a distinctly legal system, is part of the ... controversial and uncertain process of assigning meaning to 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 of responsible choice and constraint. 3 64 In it lies his notion of "integrity." As Dworkin explains, integrity in law
commands a horizontal . . . consistency of principle across the range of the legal standards the community now enforces. It insists that the
law - the rights and duties that flow from past collective decisions and for that reason license or require coercion - contains not only the narrow explicit content of these decisions but also, more broadly, 36 5
the scheme of principles necessary to justify them.
This conception of legal integrity 366 corresponds closely to the more familiar one of personal integrity. An individual shows integrity (or, we might say, self-government) by acting "according to convictions that inform and shape [the individual's life] as a whole, rather than capriciously or whimsically." 36 7 An important value of this trait is dialogic: it allows one person to recognize another's acts as expressing a conception of fairness or justice or decency even when we do not endorse that [particular] conception ourselves. This ability is an important part of our more general ability to treat others with respect, and it is therefore a prerequisite of civilization. 368 Legal integrity, says Dworkin, has a like "expressive value," in evidence "when people in good faith try to treat one another in a way
appropriate to common membership in a community .
.
. and to see
each other as making this attempt, even when they disagree about exactly what integrity requires in particular circumstances." 369 Legal integrity is, like personal integrity, an implication of normative conversation. Moreover, just as personal integrity implies self-government, legal integrity is, according to Dworkin, a condition of the kind of freedom envisioned by Rousseau and Kant, freedom achieved through "selflegislation" in a social setting. 370 This condition holds in the first place because "a citizen cannot treat himself as the author of a col364 "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 between these 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 the second place because of the demand for generality exerted by the idea of political self-government: 3 72 legal integrity "insists that each citizen must accept demands on him, and may make demands on others, that share and extend the moral dimension of any explicit political decisions." 3 73 The upshot of these considerations is that "integrity ... '374 fuses citizens' moral and political lives. In sum, Dworkin's narrative-constructive model of legal interpretation is part of an account of political self-government through which socially situated individuals realize moral freedom or personal integrity.
3 75
The question is: whose integrity? Dworkin says that legal integrity "asks the good citizen, deciding how to treat his neighbor when their interests conflict, to interpret the common scheme of justice to which they are both committed." 3 76 But in what sense is that true? It is not, after all, citizens who are immediately called upon for the work of legal integration. The narrativistic theory of law as integrity seems a vindication of the moral freedom of judges377 - displaced, in Dworkin's account, onto the citizens. Dworkin is aware of this apparent displacement. He says that the citizens share in the freedom insofar as they "have reason" to regard themselves as "in some sense the authors of the political decisions made by [their] governors. '"378 He argues that they do have such reason: members of an associative group accept and feel responsibility for the group's actions, meaning actions duly taken in the group's name. 3 79 In order to see whether this sort of argument can overcome the displacement difficulty, we need to take a step backward.
371 R. DWORKIN, supra note 301, at i89. 372 See supra p. 27. 373 DWORKIN, supra note 3oi, at 189. R. 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 and integration, rather than of conversation and plurality. See Van Meter, Adjudication As a Normative Activity: An Essay on Legal Reasoning 120-28 (unpublished draft on file with the author); infra note 408 and accompanying text. 376 R. DWORKIN, supra note 301, at i89-9o. He further says that the ideal of legal integrity makes political obligation "a protestant idea: fidelity to a scheme of principle each citizen has a responsibility 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 (suggesting that judicial interpretations of the law are not privileged vis-h-vis those of various communities). 378 DWORKIN, supra note 301, at 189. Dworkin's context makes clear that by "governors" R. 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 hard cases in order to show that disputed claims of legal right always or almost always have right answers, in principle, even in the hardest cases. 380 Readers both accepting 38 1 and skeptical 38 2 took him to be addressing a question of political legitimacy - that of the justification of state, including judicial coercion; judicial decisions not demonstrably required by some form of generally recognized authority cannot easily be justified by reference to either expressions of democratic will or transcendent principles of right. Such a construal of his intention left Dworkin open to the objection that, as observed from the standpoint of those expected to submit to judicial authority, there is no detectable difference between a regime in-which judges try to conform their decisions to "the best constructive interpretation of the community's legal practice" 38 3 and one in which they feel free to decide "on the basis of their favored ideology. '38 4 The root of this objective ambiguity is the personal visionary element with which the judge must combine assessments of "fit," in arriving at a "best" constructive interpretation. 38 5 The authoritative legal materials, it is said, will contain potentially conflicting statements of doctrine and principle, reflecting whatever ideological conflicts are typical or salient in the community. Thus "a judge who conscientiously consults the materials [will] find his favored ideology in some substantial portion of the settled law and conclude that it [is] the 386
soundest theory of the law.
As against Law's Empire, the complaint of objective ambiguity is misdirected. 3 87 We need not now decide whether Dworkin ever in380 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 in the last analysis all responsive to [the judge's] political judgment. His convictions about fit ... are political, not mechanical.... When an interpretation meets the threshold, remaining defects of fit may be compensated ... if the principles of that interpretation are particularly attractive, because then he sets off the community's infrequent lapses in respecting 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 any contemporary cohort of judges. See R. DWORKIN, supra note 301, at 88-89. But he also writes warmly of the utopian dreams of "legal philosophers," of which there may be many that "respect integrity" 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 Empire makes clear that the thesis is now meant to apply to the "internal" standpoint, that is, the individual judge's personal standpoint, from 3 9 8 which the decision is made and experienced. Focusing exclusively on the judicial internal standpoint is crucial to the methodological program of Law's Empire.390 In the narrow interest of defending something like a right-answer thesis, one can see why. Less clear is what larger claim the thesis can support, if cast into so strictly internalized a form. It cannot be legitimation in the old straightforward sense. 3 9 1 No doubt the experiential constraint may have value for the judge, just as any experience of choosing rightly rather than randomly may have a sovereign moral value for the chooser. But this does not explain what value it has for the community, a value Dworkin urgently maintains that it has. Dworkin's answer is still legitimacy, the justification of state coercion and explanation of political obligation. 3 92 He says that a community ought to "[accept] integrity as a [central] political virtue" be3 93 cause doing so "provides [the best] defense of political legitimacy.) "Integrity" means here what it means throughout: communal commitment to good faith extension to the next case - yours or mine - of the body of justificatory principles immanent in the entirety of the community's practice to date in the exercise of coercive force against its members. 3 94 The community is committed to treating its members "according to convictions that inform and shape [its life] as a whole, 39 rather than capriciously or whimsically. " 5 One sees how a credible, communal commitment to integrity may carry practical benefits that attract the loyalties of members of the community. Most obviously, it gives members some useful basis for planning and reliance, even allowing for what is from the external
- large choices by statesmen in high judicial and legislative office, smaller choices by those whose 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 because a 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 for communal obligation we elsewhere accept." Id. "Elsewhere" refers, for example, to the family. The quoted statement recapitulates an extended, subtle, and very interesting philosophical analysis of the elements of associative community in general and political community in particular, 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. But Dworkin is plainly more interested in the "expressive" than in the functional value of legal integrity. Commitment to legal integrity "expresses a concern by each for all that is sufficiently special, per39 6 sonal, pervasive, and egalitarian to ground communal obligations." Dworkin says his argument relies on personification. 3 97 Law, he proposes, speaks for "the community personified." 3 98 The community's integrity is the law's integrity, as legislators make and judges construe it. The law's integrity expresses the idea that "the community as a whole has obligations of impartiality toward its members, and that officials act as agents for the community in acquitting that re39 9 sponsibility." There would be nothing remarkable in this personification if its premise were that judicial decisions, in the aggregate, displayed an objective integrity to observers in the community. With that premise, indeed, we could dispense with personification. The valued communal expression would simply consist of members' support of a legal order having observable, aggregate integrity. That, however, is not the premise. That premise would have required a defense of the objective right-answer thesis, a defense of the thesis from the external observer's standpoint. This defense Dworkin not only does not supply, but also deliberately sets outside his entire project as beside the point. With only "internal" right answers, there is integrity, but it comes encased within each separate act of adjudication. Good judges may have integrity. Good decisions may have integrity. As to the law, integrity seems neither here nor there, and the same holds for whatever community the law represents. There are not one but two puzzles here. There is the one we have just been considering, of why Dworkin should think the community's integrity is represented by an objectively plural law. There is another we noticed earlier, of why Dworkin should be investing anything in the internal-subjective version of the right-answer thesis. If the narrativistic theory of legal interpretation is descriptively true, then the internal right-answer thesis is true. But what is its importance? As often when puzzles seem linked, the linkage of these two suggests their joint solution. The linkage here suggests two conclusions. First, the virtue of integrity is in the judge, not in the law, and its value to the community is representational: the judge represents integrity - self-government - to the community, not of it. Second, the integrity - the self-government - of the judge is constituted by
the conjunction in the judicial act, as experienced, of cognitive and

396 Id. at 216. 397See id. at 167-68. 398 Id. at 225. 399Id. at 175.
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volitional elements in tension. If and only if the subjective rightanswer thesis is true, judges represent practical reason to the community. Dworkin's own account of the matter comes close to suggesting what I have said: We want our officials to treat us as tied together in an association of principle, and we want this for reasons that do not depend on any identity of conviction among these officials, either about fit or about the more substantive principles an interpretation engages. Our reasons endure when judges disagree, at least in detail, about the best interpretation of the community's political order, because each judge still confirms and reinforces the principled character of our association by striving, in spite of the disagreement, to reach his own opinion instead 40 0 of turning to the usually simpler task of fresh legislation. In the end, Dworkin does not appear to explain how it can be that a judge "confirm[s] . . . the principled character of our association" by striving each "to reach his own opinion." It seems to me the answer finally must sound in virtual representation. The judge, as Dworkin envisions him, represents by his own self-government our missing self-government, by his own practical reason our missing dialogue. What he thereby confirms is possibility. Could that be what we value?
IV. SUMMARY AND CONCLUDING OBSERVATIONS
In this Foreword I have offered for consideration the following thoughts: First, the object of self-government is freedom. That object lies partly in constituting the governed as sovereign over their governors. But freedom's connection to self-government does not lie only, or ultimately, in the protective function of popular sovereignty, invaluable though that function is. Freedom in its fullest sense is selfgovernment, active engagement in a self-directive process that is cognitive as well as volitional, hence (given our social constitutions and situations) public as well as private, political as well as personal. Second, freedom understood as self-government involves constant mediations between objectivity and subjectivity, universe and context, sameness and difference, empire and paideia - mediations that are extremely 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 of investigation seem to converge on some characteristic notions of dialogue 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 general pursuit of freedom of which the legal enterprise is presumably a part. It is possible to see how the responsive notions of dialogue and practical reason might characterize the work of judges. One can usefully describe, and significantly criticize, particular judicial performances in terms of their apparent degrees of commitment to the pursuit of mediative practical reason through normative dialogue. Third, on a certain reading, the civic-republican tradition, currently resurgent in American constitutional-legal thought, offers historical validation for the ideal of freedom as self-government realized through politics, along with visionary resources for critical comprehension of the ideal and of specific institutional manifestations of it. If this positive-libertarian ideal is highly valued, then these observations may help explain the tradition's stubborn hold on a place in constitutional imagination - despite the historical defeat of its antifederalist defenders, despite its obvious impracticality in the national constitutional setting, and despite the unattractive or ominous features that the tradition also notoriously incorporates. Conversely, the tradition's persistence despite these adverse factors suggests that positive public freedom - active political self-government - is indeed an ideal more highly valued than actual constitutional practice might 40 suggest. Fourth, as a result, the courts, and especially the Supreme Court, seem to take on as one of their ascribed functions the modeling of active self-government that citizens find practically beyond reach. Unable as a nation to practice our own self-government (in the full, 4 2 0 positive sense), we - or at any rate we of "the reasoning class" can at least identify with the judiciary's as we idealistically construct it. This sounds like a pathology of court-fetishism, and it may be that. But I want to suggest more optimistic possibilities in the idea of the Court as a bastion of (its own) self-government. In the pessimistic view - the one that informs the doctrine of judicial counter-majoritarianism 4 3 - the country's total supply of rulership, or political freedom, is fixed. Whatever share we cede to the Court we deny to ourselves. We thus hand over to the Court not only the safekeeping of our negative liberty, but also our positive liberty itself. 40 4 This view of the matter, we are now in a position to
401 See Shalhope, supra note 257, at 355-56.
J. ELY, supra note 95, at 59 & n.**. 403 See supra p. 62.
402
404
"T]he exercise of judicial review... is always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that come from fighting the 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 freedom, of the United States of America with the canton of Geneva, and of the people with the legislative and executive branches. If freedom consisted simply of doing (and commanding) as one will, then indeed the relation between one agent's freedom and another's - between the Court's freedom and the country's (assuming for the moment that the country and the Congress are one and the same) would be the subtractive one supposed by counter-majoritarian pessimism; the freedoms would sometimes collide, and when they did only one could prevail. But if freedom consists of socially situated self-direction - that is, self-direction by norms cognizant of fellowship with equally self-directing others - then the relation between one agent's freedom and another's is additive: one realizes one's own only by confirming that of the others. This seems to hold no less for a judge than for any other agent. For a citizen of Geneva it was perhaps imaginable that positive freedom could be realized for everyone through direct-democratic selfgovernment, a sovereignless civic process of ruling and being ruled, with no place for legal authority beyond the process itself. But for citizens of the United States, national politics are not imaginably the arena of self-government in its positive, freedom-giving sense. As a constituted nation we are, it seems, necessarily committed to the sovereign separation of rulers from ruled. We ought not to deny the separation; government-fetishism is no better than court-fetishism. Congress is not us. The President is not us. The Air Force is not us. "We" are not "in" those bodies. Their determinations are not our self-government. Judges overriding those determinations do not, therefore, necessarily subtract anything from our freedom, although the judges also, obviously, are not us. Their actions may augment our freedom. As usual, it all depends. One thing it depends on, I believe, is the commitment of judges to the process of their own selfgovernment. Citizens of a sovereign state owe respect to its authority, as duly expressed in law - not absolute blind obedience, of course, but strong presumptive respect. That is the least it can mean to speak of the state as sovereign. Justices engaged in adjudication and judicial review are not for this purpose citizens; rather, they are organs of the state, the ultimate oracles of its law. 405 Although this judicial office itself 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 its sense 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 its necessity if there is to be law at all. 40 7 It follows that the justices cannot owe deference to any other legal authority. The law and its applications are their responsibility. Of course this is not to say that the justices are free to set at naught congressional enactments or Air Force regulations. Judicial self-government, like all self-government, can occur only within a nomos, a cognizable normative universe that makes integrity conceivable. In our judicial nomos there are strong norms of popular sovereignty, intragovernmental division of responsibility, and justice to parties - all of which demand attention to statutes, regulations, constitutional texts, precedents, and other embodiments of history. But attention cannot mean deference, or talismanic invocation of authority. The norm of justice to parties itself commands that no other norm should ever take a form that preempts questions or exempts from reason-giving. Every norm, every time, requires explanation and justification in context. As we have seen, the task calls for practical reason, and practical reason involves dialogue. When Justice O'Connor asks for a reason to believe that any Air Force interest is jeopardized by outlawing Goldman's yarmulke, it is the Court's obligation to answer with something other than a reference to "professional judgment," which itself stands mute in response to the demand for a reason. The "rule" of deference to military judgment is no more sacrosanct than any other norm. Every application must be justified in context, with reasons one can accept, as applied to the case at hand. This brings us, finally, to what is lacking in Ronald Dworkin's conception of law as (judicial) integrity, even on my most optimistic reconstruction. What is lacking is dialogue. Hercules, Dworkin's mythic judge, is a loner. He is much too heroic. His narrative constructions are monologues. He converses with no one, except through books. He has no encounters. He meets no otherness. Nothing shakes him up. No interlocutor violates the inevitable insularity of his experience and outlook. Hercules is just a man, after all. He is not the whole community. No one man or woman could be that. Dworkin has produced an apotheosis of appellate judging without attention to what seems the most universal and striking institutional
characteristic of the appellate bench, its plurality. 40 8 We ought to
See supra pp. 64-65, 68-69. 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 but constructive ... a matter of imposing purpose on [a] ... practice in order to make it the best possible example" of its kind); id. at 58 (linking the value of "the shock of recognition" with the idea of "a conversation with oneself").
407 408
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77
consider what that plurality is "for." My suggestion is that it is for dialogue, in support of judicial practical reason, as an aspect of judicial self-government, in the interest of our freedom. There is a message there for the politics of judicial appointments, not to mention for the politics of law.

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Citation: 100 Harv. L. Rev. 4 1986-1987 Content downloaded/printed from HeinOnline (http://heinonline.

THE SUPREME COURT 1985 TERM

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I. PROLOGUE: RULE AND REASON

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at 1313. The opinion drew upon prior authority as follows:

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in Goldman's case, for contextual appraisal without proposing any 54 standard.

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study, see pp. 17-19 below.

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II. THE REPUBLICAN TRADITION

i. American Constitutional Thought.

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78CONSTITUTIONAL LAw, supra note 74, at 5.

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3x2. 122 See I.

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Touchbook ed. 1984).

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it to cases is one that every common law practitioner will immediately