1 These contrary tendencies were illustrated in a recent meeting of the conservative Federalist Society, where panelist Robert Bork, perhaps the most distinguished representative of the former school of thought, was reproached from the floor, with encouraging applause from a significant portion of the audience, for his lack of enthusiasm for using the courts to roll back New Deal legislation. Mayflower Hotel, Washington, D.C., Jan. 31, 1987.Google Scholar

2 304 U.S. 144 (1938).Google Scholar

3 Grey, Advice for Judge and Company, 64 N.Y. Rev. Books, Mar. 12, 1987, at 35.Google Scholar

4 For both of whom, of course, there are significant exceptions to their postures of restraint.Google Scholar

5 I say “congenial to” as distinguished from “congruent with,” for as we shall see, Wolfe maintains that the misguided “modern” judicial review is so pervasive that even those who would appear in a way to be his intellectual allies in their advocacy of judicial restraint in fact rest their jurisprudence on modern judicial review's faulty foundations.Google Scholar

6 R. McCloskey, The American Supreme Court (1960).Google Scholar

7 Id. at 18–22.Google Scholar

8 See, e.g., Wolfe at 18, 19, 23, 327.CrossRefGoogle Scholar

9 Id. at 49–50, citing Marshall in Ogden v. Saunders, 12 U.S. (1 Wheat.) 213, 353 (1827).Google Scholar

10 12 Ser. & Rawle (PA) 330 (1825).Google Scholar

11 R. Scigliano, The Supreme Court and the Presidency (1971).Google Scholar

12 Wolfe, at 105, quoting Bushrod Washington in Ogden v. Saunders, 12 U.S. (1 Wheat.) 213, 270 (1827).Google Scholar

13 But cf. Farber, The Case Against Brilliance, 70 Minn. L. Rev. 917 (1986).Google Scholar

14 Epstein at 22, citing Blackstone, Commentaries 2 (1765).Google Scholar

15 In his preface, Epstein repeats the confusion by saying that “[the eminent domain clause] authorizes at the constitutional level the forced exchanges found in the [private] laws of necessity and nuisance” (at ix).Google Scholar

16 R. Epstein, A Theory of Strict Liability (1980).Google Scholar

17 Epstein at 109. Recall that the Lochner Court had concluded that “there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one,” 198 U.S. 45 (1905).Google Scholar

18 Epstein at 112. Epstein urges “intermediate” level of scrutiny, that lying between “strict scrutiny” and “rational basis” (at 129).Google Scholar

19 Or in the case of the “lean” account of public goods, those goods that cannot be made exclusive, such as national defense, whether one wishes to avail oneself of its benefits or not (at 166).Google Scholar

20 As represented in the work of such scholars as Ronald Dworkin, Bruce Ackerman, Frank Michelman, David Richards, and John Hart Ely. The inclusion of Ely in this list may be thought controversial, for his Democracy and Distrust (1980) would suggest a more modest role for the courts than that advocated by the other authors. Still, the fundamental underpinnings for his argument are taken from the neo-Kantians' central premise of “equal concern and respect.” See id. at 82, drawing from R. Dworkin, Taking Rights Seriously 180 (1977). The work of these legal scholars is heavily dependent on the work of John Rawls, A Theory of Justice (1971).Google Scholar

21 This is essentially a “footnote four” rationale plus a claim for special judicial competence.Google Scholar

22 Epstein himself does not cite Madison's argument.Google Scholar

23 R. Dworkin, Taking Rights Seriously, 272–73 (1977).Google Scholar

24 Id. at 172. Brubaker, Taking Dworkin Seriously, 47 Rev. Politics 45, 56 (1985).Google Scholar

25 For this alternative view of the structure of rights, see F. Schauer, Free Speech (1982).Google Scholar

26 R. Unger, The Critical Legal Studies Movement 5–14 (1986).Google Scholar

27 H. L. A. Hart, The Concept of Law (1961). In Hart's conceptual scheme, the legal system is composed of primary rules, which tell people to do or to refrain from doing certain things, and secondary rules, which function largely as rules by which we recognize the primary rules as authoritative. Id. at 77–96. Our Constitution thus is a rule of recognition. In searching then for a rule of recognition for the Constitution, we are looking for what might be thought to constitute a realm of tertiary rules. Hart refused to take his theory to this level, in part because doing so would raise the specter of an infinite regress of rules of recognition. Id. at 97–120. The result is avoided by noting that when we pass from secondary to tertiary rules, we move to a different plane of discourse, from legal rules to political theory.Google Scholar

28 I develop the arguments concerning the concept of a meta-constitution more fully in Civilization and the Court (paper presented at 1984 meeting of American Political Science Association, Sept. 4, 1984, Washington D.C.) and in The Constitution of Self-Government (manuscript in preparation).Google Scholar

29 H. L. A. Hart, supra note 27, at 86–88. Though his concept of internal perspective must be adjusted to the fact that we are extending our inquiry to a tertiary realm, where he limited his to the secondary. See note 27.Google Scholar

30 J. Rawls, A Theory of Justice. 13–17 & 251–57 (1971); D. Richards, Toleration and the Constitution 52–57 (1986).Google Scholar

31 See W. Galston, Justice and the Human Good 55–56 (1980).Google Scholar

32 B. Ackerman, Social Justice in the Liberal State 368 (1980).Google Scholar

33 Galston, Defending Liberalism, 76 Am. Pol. Sci. Rev. 621, 625 (1982); M. Sandel, Liberalism and the Limits of Justice 168 (1982).Google Scholar

34 M. Sandel at 142 (cited in note 33).Google Scholar

35 Though Epstein does devote a page and a half expressing his hope that such qualities will emerge as by-products of this constitutional scheme. Id. at 345–46.Google Scholar

36 Aristotle, Politics 1280a (E. Barker trans. 1971); cf. Epstein, at 3–6, 163–64, 197–99, 331–32.Google Scholar

37 Plato, Republic 3724 (A. Bloom trans. 1968). In the words of Glaucon, referring to the city that Socrates had constructed along Epsteinian lines: “if you were providing for a city of sows, Socrates, on what else would you fatten them than this?”Google Scholar

38 B. Bailyn, The Ideological Origins of the American Revolution (1967); D. Epstein, The Political Theory of the Federalist (19884); and G. Wood, The Creation of the American Republic (1972).Google Scholar

39 The Federalist No. 39, at 240 (J. Madison) (C. Rossiter ed. 1961).Google Scholar

40 See note 38 supra. Google Scholar

41 I say “seem” because these two tendencies do not exhaust the possibilities that claim to be loyal to the liberal tradition. In an account of constitutional meaning far more profound, reflective, and aware of the dimensions of politics than that of any of the neo-Kantians or that of Richard Epstein, Rogers Smith develops a theory that he calls neo-Lockean, giving central concern to the concept of “rational liberty.” R. Smith, Liberalism and American Constitutional Law (1985). Despite its clear superiority to the other two liberal theories, I doubt that Smith's theory can fully explain the authority of the Constitution. Its ultimate ground is not entirely free from ambiguity; it appears either to be fatally infected with elements of neo-Kantianism or to invoke in a central way a notion of the human good and thus in fact to lie outside the liberal tradition. These propositions are far too complex to explore here; I address them in my work listed in note 28.Google Scholar

42 Wolfe is quite sensitive to this distinction, noting that the nature of judicial authority under the Constitution means that courts should view the Constitution through certain lenses, most notably that of deference (at 73–120).Google Scholar

43 See R. Dworkin, A Matter of Principle 34–57 (1985).Google Scholar

44 Moore, A Natural Law Theory of Interpretation, 58 S. Cal. L. Rev. 277–398 (1985).Google Scholar

45 Id. at 340.Google Scholar

46 See, e.g., his discussion of Hamilton and Marshall on the constitutionality of the National Bank, at 28–38, 4146.Google Scholar

47 L. Levy, Emergence of a Free Press 315–25 (1985). If “real meaning” more accurately describes the tradition, one wonders why Wolfe repeatedly uses the term “original intent.” It could be that what I have said incorrectly describes the tradition, and much more attention must be given to intentions other than spare semantic ones. Or it could be that Wolfe the citizen unconsciously influenced Wolfe the political historian. The notion of opening up the judicial process to whatever the judges perceive to be the “real meaning” can be unsettling. And certainly in the face of prevailing intellectual currents, which hold that it is merely a matter of convention how we carve up the political and moral world and the names we attach to each slice, such concern is warranted. See Moore, supra note 44, at 288–313. In the face of widespread doubt that there is a nature of things, one might think it better to confine judicial authority to the beliefs of those who did think that there is an essence to concepts such as republican government, free speech, legislative and executive authority. Still, given the generally negative reception given to the notion of a jurisprudence of original intent, I doubt that the strategy will work.Google Scholar

48 As Madison pointed out in the Federalist No. 37, a necessary vagueness enters into all discussions of political and legal objects due to three factors: “indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas.” For an elaboration of the judicial relevance of the distinction between ontological and epistemological skepticism, see Brubaker, Reconsidering Dworkin's Case for Judicial Activism, 46 J. Pol. 503–19 (1984).Google Scholar

49 Moore, 58 S. Cal. L. Rev. 277, neglects these “other” things.Google Scholar

50 See, e.g., R. Berger, Government by Judiciary (1977), and Death Penalties (1982).Google Scholar

51 To be distinguished from an “evolving meaning.”Google Scholar