I've been reading Walter G. McCloskey, who writes of the "dualism of the American mind" (The American Supreme Court 2d ed., p.8, Chicago) and our "native tendency to harbor conflicting ideas without trying, or caring to, resolve them." The conflict that underlies all, he says, is between "popular sovereignty and fundamental law," i.e. majority rule and obedience of the majority to a constitution. P.9
That may be like saying we're either a bit schizophrenic or that we like to have our cake and eat it too, but I think of it more as we like it neither too hot nor too cold, resulting in the need for having the SC act as thermostat. Too far in either direction and we freeze or fry. Preferring the middle ground doesn't seem terribly dualistic to me.
The closer we look at what individuals among the founding population thought, the more confused we're apt to see the elements of the picture. The problem seems to be at what level should we focus the historical lens, tightly close-up, or more distant, wide-angle. This seems to be a good part of the discussion regarding the originalist/textualist point of view versus the evolutionist. Absent an agreed on focal point as to the beginning beliefs, since they were in some conflict and varied in degree, we have good reason to adjust the view according to our own lights, giving a healthy respect to what we THINK (or are willing to argue) were the "views of the founding generation."
They had their problems and we have ours, one of them being what we think they thought. Seems to me the Statute of Mortmain was enacted to get past this sort of thing, some years prior to 1787.
Bob Sheridan
SFLS
----- Original Message -----From: Robert Justin LipkinSent: 6/7/2003 4:54:23 AMSubject: Re: Founding-Centered ConstitutionalismFour inexcusably brief remarks:
1. It was never my view that we should be contemptuous of the Founding population.
2. Saying that the Founders never intended American government to be free of undemocratic elements merely states the problem rather than resolves it. The problem persists, namely, how are undemocratic elements in a system of government compatible with the idea of self-rule. If such compatibility exists, it must be explained and defended. (Incidentally, my hunch is that such an explanation is possible. My point is that it is necessary.)
3. Embracing democracy in no way entails a commitment to "populist democracy." Democratic theory contains democratic alternatives to ! 'populism," in the ordinary sense of that term.
4. From both a pragmatist and democratic perspective, I think it dangerous in the extreme to canonize any group of people because their education and experience were impressive, or even because their principles were good. Whether we can learn from the Founding generation (of course, we can) is, in my view, largely irrelevant to the question of whether Founding-Centered (and famous Founder-Centered) constitutionalism is appropriate. More important, Founding-Centered constitutionalism tends to dedicate or fix constitutionalism in ways that are, I would think, incompatible for self-rule.
Bobby Lipkin
Widener University School of Law
Delaware
