I think it very worthwhile to focus on the question whether the attitudes and views of the relatively small group of founding fathers deserve to be preserved in aspic [sic] forever . . .
I agree. Moreover, I do not think that we are compelled to endorse the interpretation that regards the (famous) Founders as embracing a conception of self-rule contemptuous of ordinary people. And if we are so compelled, my response is that the (famous) Framers' view is simply incoherent. I do not understand, even in theory, how the people can be the normative source of political power and self-rule, yet be totally excluded from self-governing as it occurs on a daily basis. Or even if we refrain from rejecting such a view out of hand, we must, at least, explain how the people can be fit as the normative basis of self-government and similarly fit every two, four, or six years to elect the elite politicians, yet must be excluded a prior from a more active and permanent role in self-government. The central point here is that if the (famous) Founders' conception of self-rule is canonically contemptuous of ordinary people, that conception is not easily distinguishable from the monarchist conception, the Founders fought against. Instead of one King, we now have several Kings to govern a grateful polity.
Distinguish between two possibilities: (1) For pragmatic reasons existing at the time of ratification, the American constitutional system was designed in a particular way giving ordinary people a say only in elections and in times of revolution, and (2) This design is canonical; it can be altered through an Article V change, but if it is, the new system will nevertheless pervert the true (best, sacrosanct, take your pick) theory of the (famous) Founders that ordinary people have no (permanent political) role in the day to day vagaries of self-government. I might be persuaded to accept (1). But I think (2) is anathema to the notion of self-rule (even as the (famous) Founders understood this), and a perversion of the same.
In the final analysis, if I embraced a Founding-centered constitutionalism, I'd be more interested in the Founding population, including of course the Founding Fathers, but in no way limited to them. But as I indicated earlier I agree with Bob Sheridan's suggestion that we must question whether a Founding-centered constitutionalism is anything more than one indicia of the appropriate conception of American self-rule. And after two hundred years of American constitutional development, a Founding-centered constitutionalism, though still relevant (though decreasingly so), is hardly dispositive of what the American conception of self-rule includes.
Bobby Lipkin
Widener University School of Law
Delaware
