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² Gutmann, Amy, “The Disharmony of Democracy,” in NOMOS XXXV: Democratic Community, ed. Chapman, John W. and Shapiro, Ian (New York: New York University Press, 1993), 129.Google Scholar

³ Dahl, Robert, Democracy and Its Critics (New Haven: Yale University Press, 1989).Google Scholar

⁴ Rawls, John, Political Liberalism (New York: Columbia University Press, 1996)Google Scholar. Rawls argues that for terms of social cooperation (including democracy) to be justifiable, citizens offering the terms must believe that it would be reasonable for other reasonable citizens to accept them. But it is unreasonable to suppose that citizens holding comprehensive view A would accept terms put forward on the basis of view B—even if B were a view appealing to familiar values such as Kantian autonomy or Millian individuality (ibid., xliv–xlv).

⁵ See ibid., 385–95.

⁶ See Rorty, Richard, Philosophy and the Mirror of Nature (Princeton: Princeton University Press, 1980).Google Scholar

⁷ Aristotle, , Nicomachean Ethics, 1096b17–26.Google Scholar

⁸ Ibid., 1095b23–30.

⁹ This distinction is what Leo Strauss had in mind when he observed that “Aristotle seems to suggest that there is not a single rule, however basic, which is not subject to exception… There is a universally valid hierarchy of ends, but there are no universally valid rules of action.” Strauss, , Natural Right and History (Chicago: University of Chicago Press, 1953), 160, 162.Google Scholar

¹⁰ This is not to suggest that only democratic institutions may do so. The market allocates scientific resources in many areas, especially medical research. And if nondemocratic political institutions are legitimate, then they too may engage in such distribution. My point is simply that when democratic institutions do so, they do not exceed the bounds of their legitimate authority.

¹¹ For a detailed account of this matter, see Joravsky, David, The Lysenko Affair (Cambridge, MA: Harvard University Press, 1970).Google Scholar

¹² Dahl, , Democracy and Its Critics, 167.Google Scholar

¹³ Jürgen Habermas is an example of this mode of thinking. For a discussion and critique of his view that all valid public claims are inherent in the nature of or conditions for democratic deliberation, see Gutmann, Amy and Thompson, Dennis, Democracy and Disagreement (Cambridge, MA: Harvard University Press, 1996), 17–18.Google Scholar

¹⁴ Dahl, , Democracy and Its Critics, 182–83.Google Scholar

¹⁵ The disputation represented in literary form by Jehudah Halevi is based on actual events: see Halevi, , Kuzari: The Book of Proof and Argument, ed. Heinemann, Isaak (Oxford: East and West Library, 1947).Google Scholar

¹⁶ I say “nearly all” because it is possible to imagine (indeed, history records) circumstances in which a community is faced with the choice between mass religious conversion and total annihilation. If I found myself in such circumstances, I would certainly argue that the governing institutions should take up this question on an urgent basis, and I would not argue that it would be a moral breach to establish a state religion. (But it would not be mandatory either: the people would be within their moral rights to choose death over the coerced violation of conscience.)

¹⁷ For an authoritative account of these two points, see Tribe, Laurence H., American Constitutional Law, 2d ed. (Mineola, NY: The Foundation Press, 1988), ch. 12.Google Scholar

¹⁸ Gutmann, and Thompson, , Democracy and Disagreement, 262.Google Scholar

¹⁹ This is not intended as a parable of Oregon's assisted suicide law, which is distinguishable from the men-in-the-forest case in a number of important respects.

²⁰ Neely, Mark E. Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York: Oxford University Press, 1991), 12.Google Scholar

²¹ “The welfare of the people is the supreme law.”

²² Neely, , The Fate of Liberty, 68.Google Scholar

²³ Tribe, , American Constitutional Law, 792.Google Scholar

²⁴ Employment Division v. Smith, 110 S.Ct. 1595 (1990).Google Scholar

²⁵ Pub. L. No. 103–141 (Stat. 1488, codified at 42 U.S.C.A. sect. 2000bb–2000bb4). This statute was subsequently ruled unconstitutional by the Supreme Court in the case of City of Boerne v. Flores, 117 S.Ct. 2157 (1997)Google Scholar, and the struggle continues.

²⁶ Aristotle, , Nicomachean Ethics, 1112a23–1112b12.Google Scholar

²⁷ Nussbaum, , The Fragility of Goodness, 296–97.Google Scholar

²⁸ For this and related matters, see Barry, Brian, “Political Argument after Twenty-Five Years,” in Political Argument: A Reissue with a New Introduction (Berkeley: University of California Press, 1990), xxxix–xliv, lxix–lxxii.Google Scholar

²⁹ This example was suggested by a discussion in Carens, Joseph H., “Compromises in Politics,” in NOMOS XXI: Compromise in Ethics, Law, and Politics, ed. Pennock, J. Roland and Chapman, John W. (New York: New York University Press, 1979).Google Scholar