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Philosophical Dimensions of the Constitution .....___Philosophical Dimensions of the Constitution_-----...; edited by Diana T. Meyers and Kenneth Kipnis Consulting Editor: Emily R. Gill An AMINTAPHIL Volume ~l Routledge ! ~ Taylor & Francis Group LONDON AND NEW YORK First published 1988 by Westview Press, Inc. Published 2019 by Routledge 52 Vanderbilt Avenue, New York, NY 10017 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright© 1988 Taylor & Francis All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging in Publication Data Philosophical dimensions of the Constitution. "An AMINTAPHIL volume." Includes index. 1. United States-Constitutional law-Philosophy. I. Meyers, Diana T. II. Kipnis, Kenneth. KF4550.P48 1988 342.73'02'01 88-141 ISBN 13: 978-0-367-28283-7 (hbk) Contents Preface vii Introduction: The Philosophical Foundations of the U.S. Constitution, Richard T. De George 1 Part One The Ideals of the Framers Introduction to Part One, Kenneth Kipnis 17 1 Virtue, the Public Good, and Publius, Emily R. Gill 19 2 The Purposes of the Constitution, Lester f. Mazor 40 Part Two Democracy and the Constitution Introduction to Part Two, Diana T. Meyers 57 3 Constitutional Revision, Cornelius F. Murphy, Jr. 60 4 Constitutional Limits on Majoritarian Democracy, William Nelson 75 Part Three Interpreting the Constitution Introduction to Part Three, Kenneth Kipnis 93 5 Between Clause-bound Literalism and Value Imposition: A Positivist, Noninterpretivist Theory of Judicial Review, H. Hamner Hill 96 6 Toward a Public Values Philosophy of the Constitution, Stephen M. Griffin 119 7 Constitutional Integrity and Compromise, Kenneth Henley 134 Part Four Current Issues in Constitutional Law Introduction to Part Four, Diana T. Meyers 155 v vi Contents 8 Access, Enablement, and the First Amendment, Virginia Held 158 9 Respect for Individuals Versus Respect for Groups: Public Aid for Confessional Schools in the United States and Canada, Michael Me Donald 180 10 The Right to Privacy and Personal Autonomy, Carl Wellman 196 11 Procedural Due Process, Michael D. Bayles 206 12 The Exclusionary Rule as Constitutional Renewal: U.S. Integrity and Canadian Repute, Christopher B. 2n G~ About the Contributors 245 Index 249 Preface In the dosing decades of the eighteenth century, the newly independent colonies along the mid-Atlantic coast of North America commenced an unprecedented public debate concerning the principles of civil government. Carried along by popular books, newspapers, and pamphlets, controversy swept through the towns and villages of the region. What is the nature of the human animal? How are people shaped by different forms of government? What goods can be gained through political association? In what ways can a polity fail? How can the dangers of failure be minimized? And, above all, given our understanding of what we are, of what is good for us, and of what is possible for us, what is the best form of political association? Here was an historic opportunity to summon accumulated wisdom to the task of crafting a new government. The ancient concerns of political philosophy, as old as Plato and Aristotle, had become at this moment the most pressing of practical issues. The debate culminated in 1787 with the Philadelphia convention where the United States Constitution was drafted and adopted. After ratification in 1789, the Constitution became a canonical text delineating the fundamental principles of our political association. What had been a public debate born of revolutionary fervor was about to become a tradition of constitutional government and constitutional interpretation. About two centuries later, dose to where the framers did their venerated work, a group of philosophers, law professors, and political theorists gathered at the Law School of the University of Pennsylvania in Phil- adelphia under the sponsorship of AMINTAPHIL. Their purpose was to reexamine the philosophical underpinnings of the Constitution. Most of the papers collected in this volume were among the more than forty papers that were presented at that conference. Their concerns range over such topics as the framers' ideals, the nature of democracy, constitutional interpretation, and current issues in constitutional law. Taken together, they represent a variety of contemporary perspectives on the persistent philosophical questions raised by the Constitution. We would like to thank the University of Hawaii Foundation, the Career Development Program at Montclair State College, the Research Foundation of the University of Connecticut, and the American Council of Learned Societies for supporting our work on this volume. Diana T. Meyers Kenneth Kipnis vii Introduction: The Philosophical Foundations of the U.S. Constitution RICHARD T. DE GEORGE Individuals are born into constituted nations and grow up under the prevailing system of government, which they tend to accept as normal and legitimate. Unless they find their conditions intolerable, most people are unlikely to consider revolution or radical change and are not inclined to exchange known ills for as yet unknown demons possibly lying in wait under a new type of government. The American colonists broke with England only reluctantly. And after the revolutionary war they only reluctantly formed a union. Both the act of waging a revolution and that of forming a union were motivated by living under conditions that were perceived as intolerable. Clearly most Americans today do not find our system intolerable or feel any urgent need to break with our past or to adopt a new Constitution. The Constitution that was finally ratified and under which the United States of America was formed is a much-praised document. The fact that it is a working document two hundred years after its ratification is without historical precedent. Its success is often attributed to the brilliance of the Founding Fathers, and one might speculate how a small backward country could produce such men when many today doubt that the United States, even at its present stage of advanced development, could find as large a number of citizens to represent it as ably. An alternative interpretation credits the brilliance of the Founding Fathers less than the ingenuity of the American people who have managed to work so successfully within the confines of a document conceived two hundred years ago. In both views, a crucial element in the Constitution's success is that, unlike the Declaration of Independence (which is also highly praised), the Constitution is a spare political document and in no sense a philosophical one. Although there has been much discussion about the philosophical position presented in the Declaration of Independence, it 1