This paper constructs, within the American liberal consensus, a conceptual frame into which the great paradoxes of American politics can be fitted without significant omission or unexplained contradiction. The foundation of the American liberal consensus is seen to be a Protestant-bourgeois individualism divided against itself. This fundamental division issues into conflicting visions of America as a democracy. In national, legitimizing myth, America is seen as a Protestant-tinctured social democracy organized in terms of sovereignty of the people, confederalism, separation of powers, and popular government. On the other hand, in the ideology of America as a legally functioning state, it is a bourgeois, liberal democracy organized in terms of constitutionalism, federalism, mixed government, and representative government. These distinctions make possible a consistent explanation of the consensus-cleavage paradox that lies at the core of American political life. They also explain the persistent ambiguity that confuses the democratic character of the American political system and also the biformalism of its major institutions.

Tocqueville's argument that great revolutions will become more rare is sobering, if not chilling. But we may warm to it when we realize that it is a prospectus of realignment, intended to raise the sights of democratic statesmen and political scientists. The problem of constitutionalist statesmanship it exhibits is to combine two antithetical moralities: revolutionary morals and the morals of commerce. This paper takes seriously Tocqueville's view that “the books that have made men reflect the most and have had the most influence on their opinions and actions are not those in which the author has sought to tell them dogmatically what it is suitable to think, but those in which he has set their minds on the road leading to truths and has made them find these truths for themselves” (to Corcelle, 17 September 1853). By highlighting Tocqueville's understanding of realigning statesmanship, it seeks to reopen his approach to the study of realignment as an exercise of significant choice by the electorate, a choice of constitutional forms.

Ronald Dworkin has shown that the doctrine of judicial self-restraint, although packaged as a defense of constitutional tradition, is grounded in a legalmoral skepticism that either inadvertently or covertly rejects the possibility of a genuinely normative constitution. The influence of Dworkin's argument challenges exponents of judicial self-restraint to show that their position is consistent with constitutionalist assumptions. This paper considers two attempts to meet that challenge. One defends restraint on epistemologieal grounds; the other on a substantive theory of natural rights. Together, these attempts constitute a comprehensive and systematic attempt to justify restraint within constitutionalist assumptions. Their failure indicates that the doctrine of restraint can form no part of a normative theory of the Constitution.

The question of WHO is the ultimate constitutional interpreter poses one of the fundamental problems with which a coherent constitutional theory must come to grips. Any answer will be closely connected to other basic theoretical interrogatives, such as WHAT is the constitution and HOW should it be interpreted. Three principal theories compete here: Judicial supremacy, legislative supremacy, and departmentalism. This paper suggests a sort of analysis that transforms the question of WHO from one that yields a universally applicable response into a more complex set of queries about degrees of deference one institution owes another under varying circumstances. What emerges is a modified version of departmentalism.

This article analyzes the constitutional problems involved in “first use” of nuclear weapons. Its organizing principle is that Congress has a constitutional duty to ensure such control over nuclear weapons that first use (and first strike) is proscribed. After demonstrating that the Constitution requires collective decision-making in important policy decisions, it is recommended that Congress retrieve its delegated power over nuclear weaponry, and also establish a “council of state” within the office of the presidency with which the president must consult before taking important decisions, including those involving nuclear warfare. The council would take a sober “first look” at proposed policies, but the ultimate responsibility would be the president's.