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conversation to be had. According to this conception, the genius of MadisonÆs
design is not that it provides us a fixed blueprint for action, the way a
draftsman plots a buildingÆs construction. It provides us with a framework and
with rules, but fidelity to these rules will not guarantee a just society or
assure agreement on whatÆs right. It wonÆt tell us whether abortion is good or
bad, a decision for a woman to make or a decision for a legislature. Nor will
it tell us whether school prayer is better than no prayer at all.
What the framework of our Constitution can do is organize the way by which
we argue about our future. All of its elaborate machinery-its separation of
powers and checks and balances and federalist principles and Bill of
Rights-are designed to force us into a conversation, a ôdeliberative
democracyö in which all citizens are required to engage in a process of
testing their ideas against an external reality, persuading others of their
point of view, and building shifting alliances of consent. Because power in
our government is so diffuse, the process of making law in America compels us
to entertain the possibility that we are not always right and to sometimes
change our minds; it challenges us to examine our motives and our interests
constantly, and suggests that both our individual and collective judgments are
at once legitimate and highly fallible.
The historical record supports such a view. After all, if there was one
impulse shared by all the Founders, it was a rejection of all forms of
absolute authority, whether the king, the theocrat, the general, the oligarch,
the dictator, the majority, or anyone else who claims to make choices for us.
George Washington declined CaesarÆs crown because of this impulse, and stepped
down after two terms. HamiltonÆs plans for leading a New Army foundered and
AdamsÆs reputation after the Alien and Sedition Acts suffered for failing to
abide by this impulse. It was Jefferson, not some liberal judge in the
sixties, who called for a wall between church and state-and if we have
declined to heed JeffersonÆs advice to engage in a revolution every two or
three generations, itÆs only because the Constitution itself proved a
sufficient defense against tyranny.
ItÆs not just absolute power that the Founders sought to prevent. Implicit
in its structure, in the very idea of ordered liberty, was a rejection of
absolute truth, the infallibility of any idea or ideology or theology or
ôism,ö any tyrannical consistency that might lock future generations into a
single, unalterable course, or drive both majorities and minorities into the
cruelties of the Inquisition, the pogrom, the gulag, or the jihad. The
Founders may have trusted in God, but true to the Enlightenment spirit, they
also trusted in the minds and senses that God had given them. They were
suspicious of abstraction and liked asking questions, which is why at every
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turn in our early history theory yielded to fact and necessity. Jefferson
helped consolidate the power of the national government even as he claimed to
deplore and reject such power. AdamsÆs ideal of a politics grounded solely in
the public interest-a politics without politics-was proven obsolete the moment
Washington stepped down from office. It may be the vision of the Founders that
inspires us, but it was their realism, their practicality and flexibility and
curiosity, that ensured the UnionÆs survival.
I confess that there is a fundamental humility to this reading of the
Constitution and our democratic process. It seems to champion compromise,
modesty, and muddling through; to justify logrolling, deal-making,
self-interest, pork barrels, paralysis, and inefficiency-all the
sausage-making that no one wants to see and that editorialists throughout our
history have often labeled as corrupt. And yet I think we make a mistake in
assuming that democratic deliberation requires abandonment of our highest
ideals, or of a commitment to the common good. After all, the Constitution
ensures our free speech not just so that we can shout at one another as loud
as we please, deaf to what others might have to say (although we have that
right). It also offers us the possibility of a genuine marketplace of ideas,
one in which the ôjarring of partiesö works on behalf of ôdeliberation and
circumspectionö; a marketplace in which, through debate and competition, we
can expand our perspective, change our minds, and eventually arrive not merely
at agreements but at sound and fair agreements.
The ConstitutionÆs system of checks and balances, separation of powers, and
federalism may often lead to groups with fixed interests angling and sparring
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