¹ Alexander, Larry, “Constitutions, Judicial Review, Moral Rights, and Democracy: Disentangling the Issues,” in Huscroft, Grant, ed., Expounding the Constitution: Essays in Constitutional Theory (New York: Cambridge University Press, 2008)Google Scholar.

² Sigmund, Paul, “Carl Friedrich's Contribution to the Theory of Constitutional-Comparative Government,” in Pennock, J. Roland and Chapman, John W., eds., Constitutionalism (New York: New York University Press, 1979), 38Google Scholar.

³ Constitution of Iran, available at http://www.iranonline.com/iran/iran-info/government/constitution.html. Article 1 does note, however, that the form of government of the Islamic Republic had been endorsed by 98.2 percent of eligible voters, suggesting that popular belief and endorsement has a role to play. But there is no suggestion that the truth of the Koran and the bindingness of sharia law rest on popular sentiment.

⁴ Holmes, Stephen, “Precommitment and the Paradox of Democracy,” in Elster, Jon and Slagstad, Rune, eds., Constitutionalism and Democracy (New York: Cambridge University Press, 1988), 227Google Scholar.

⁵ Aristotle, , Politics 1251a3, 1251a30, trans. Lord, Carnes (Chicago: The University of Chicago Press, 1984)CrossRefGoogle Scholar.

⁶ Alexander, “Constitutions, Judicial Review, Moral Rights, and Democracy,” 119–20.

⁷ Ackerman, Bruce A., We the People, Volume 1: Foundations (Cambridge, MA: Harvard University Press, 1991)Google Scholar.

⁸ Madison was explicitly replying to the argument Jefferson had made in a draft constitution appended to his Notes on the State of Virginia. He probably had in mind, as well, Jefferson's oft-repeated view that because human affairs were unpredictable and mutable, their institutional arrangements should be open to regular change. In a letter he wrote to Madison in 1789, for example, Jefferson declared: “I set out on this ground which I suppose to be self-evident: ‘That the earth belongs in usufruct to the living;’ that the dead have neither powers nor rights over it…. We seem not to have perceived that by the law of nature, one generation is to another as one independent nation to another.” Mason, Alpheus T., ed., Free Government in the Making: Readings in American Political Thought (New York: Oxford University Press, 1965), 374Google Scholar.

⁹ Madison, James, Federalist No. 49, in The Federalist Papers, ed. Rossiter, Clinton (New York: New American Library, 1961), 314–15Google Scholar.

¹⁰ Aristotle, Politics 1269a20–24.

¹¹ Alexander Hamilton, Federalist No. 9, in Rossiter, ed., The Federalist Papers, 72.

¹² James Madison, Federalist No. 47, in ibid., 301.

¹³ James Madison, Federalist No. 55, in ibid., 346.

¹⁴ The locus classicus of this discussion is in the final section (entitled “The One and the Many”) of Berlin's most famous essay, “Two Concepts of Liberty,” in Berlin, Isaiah, Four Essays on Liberty (Oxford: Oxford University Press, 1969), 167–72Google Scholar.

¹⁵ Rawls, Johnasserts that justice is the first virtue of social institutions inA Theory of Justice (Cambridge, MA: Harvard University Press, 1971)Google Scholar. If Berlin is right, Rawls's claim is unsustainable as a general proposition, which does not mean that particular communities cannot choose to elevate justice to this position as a regulative principle of their own social life.

¹⁶ See Berlin, “Two Concepts of Liberty,” 170.

¹⁷ For a fuller exploration of objections to value pluralism, see Galston, William A., The Practice of Liberal Pluralism (New York: Cambridge University Press, 2004), chap. 2CrossRefGoogle Scholar.

¹⁸ Rawls, A Theory of Justice, 42.

¹⁹ Barry, Brian, Political Argument: A Reissue with a New Introduction (Berkeley: University of California Press, 1990), lxxiGoogle Scholar.

²⁰ Nagel, Thomas, “The Fragmentation of Value,” in Nagel, , Mortal Questions (Cambridge: Cambridge University Press, 1979)Google Scholar.

²¹ Often attributed to St. Augustine, this maxim seems to have been used first in the seventeenth century by a German Lutheran theologian, Peter Meiderlin. It now serves as the motto of numerous religious denominations and associations. Pope John XXIII quoted it in his encyclical Ad Petri Cathedram.

²² Quoted in Neely, Mark E. Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York: Oxford University Press, 1991), 12Google Scholar (emphasis in the original).

²³ That is: “The welfare of the people is the supreme law.”

²⁴ Garrison, William Lloyd, “Dissolution of the Union Essential to the Abolition of Slavery,” September 28, 1855, in American Datelines: Major News Stories from Colonial Times to the Present, ed. Cray, Ed, Kotler, Jonathan, and Beller, Miles (Champaign: University of Illinois Press, 2003), 42Google Scholar.

²⁵ For all this and more, see the extraordinary article, “How the Great Struggle Began,” The New York Times, April 4, 1915Google Scholar.

²⁶ The Talmudic rabbis debated, inconclusively, the extent to which the acceptance of the Torah could be understood as voluntary rather than coerced.

²⁷ James Madison, Federalist No. 51, in Rossiter, ed., The Federalist Papers, 322.

²⁸ In the Talmud, angels are sometimes depicted as arguing, civilly, about important questions—much as the rabbis themselves did.

²⁹ Employment Division v. Smith, 110 S. Ct 1595 (1990)Google Scholar.

³⁰ Id. at 1605.