If the end of a legal system is the well-being of its people, as Madison claims in Federalist, No. 45, and if it is irrational to sacrifice means to ends, as Madison says in Federalist, No. 40, then Cicero was right to conclude that salus populi suprema lex, that the people's welfare is supreme law—that the people's welfare should prevail over conflicting legal arrangements.

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.

In 1982 a panel of the Western Political Science Association meeting in San Diego took stock of postwar developments in the study of public law among American political scientists. The Western Political Quarterly has published the papers as a symposium intended to “revive a dialogue” among political scientists about the future of public law. The participants in this symposium generally take for granted the decline among political scientists, academic lawyers, and legal philosophers of the belief that judicial decision can be or even ought to be free of “political” considerations. All seem to agree about the justified triumph of something called “political jurisprudence.” Yet no consensus unites the symposium participants regarding all that political jurisprudence is or ought to be. The participants agree that political jurisprudence should be more than simply teaching and research that confines itself to the legal categories and research methods that dominate lawyers' legal briefs and judicial opinions. They also agree on the need for inquiry into the social-psychological factors of judicial choice, impact studies, alternative methods of conflict resolution, and the like. But the symposium reveals conflicting views regarding the philosophic questions of moral value that enter into legal judgments. Two views in particular stand out.

If the U.S. Constitution is a liberal Constitution, liberal governments can have a constitutional obligation to secure positive benefits or welfare rights. The original constitutional text describes a government instrumental to the Preamble's abstract ends or goods. Constitutional rights can be reconciled to the text's instrumentalist logic by viewing them as functional to better conceptions of abstract ends among actors who would compensate for their fallibility. The Federalist confirms the instrumentalism of the constitutional text. Conservative writers who treat negative liberties as constitutional ends err in several ways. They assume rational actors would establish a government for the sake of limiting it, and they ignore the positive nature of goods (life, liberty, property) that are the objects of negative liberties. They also fail to see that tax-supported protections for all positive goods, including the objects of negative liberties, must be justified by public purposes.