By David A. J. Richards
In writing the structure, the Founders mixed a Lockean conception of politically valid strength with the political technology that they had discovered from Machiavelli, Harrington, Hume, and Montesquieu to articulate a brand new perception of constitutional argument. reading the Founders' humanist analytical equipment and dealing assumptions, this ebook combines historical past, political philosophy, and interpretive perform because it demonstrates an alternate exegesis of the structure. It clarifies a variety of interpretive problems with federalism, enumerated rights (religious liberty and loose speech), unenumerated rights (the constitutional correct to privacy), and equivalent security.
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Example text
A more radical separation of religious and political authority was required in order to preserve the integrity of each, in particular, to preserve the moral independence of conscience against which the legitimate claims of state power could then be assessed. Americans, following Locke, thus gave prominence to the right to conscience because such historical reflection led them to believe that only the protection of conscience from sectarian corruption enabled people to emancipate themselves from the "artifice, imposture, hypocrisy, and superstition"75 that prevented persons from knowing and giving weight to the natural rights of human nature in both religion and politics.
That approach, as advocated by Schauer44 and Monaghan,45 captures the common sense of constitutional law as a living tradition, which is not deadly bound to a distorting mythology of the founders' intent, and gives a straightforward account of easy constitutional cases (namely, those cases at the core of existing conventions). The account, however, does not advance understanding of the interpretive process, and gives a false view of central issues in constitutional interpretation. The appeal of positivistic conventionalism is that it eases the otherwise burdensome intellectual responsibilities of constitutional interpretation.
Liberty Press, 1979), pp. 249-56. 14 See Wood, Creation of the American Republic, pp. 465-67, 474-75, 564; Jack N. : Johns Hopkins Univ. Press, 1979), pp. 389-96. , Debates in the Several State Conventions on the Adoption of the Federal Constitution, vol. , Debates); and at the South Carolina convention, Charles Pinckney admits, "our Constitution was in some measure an experiment," and "that he considered it the fairest experiment ever made in favor of human nature," idem, vol. 4, p. 262. W. Norton, 1974), pp.