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Journal of Contemporary Legal Issues



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Democratic-foundationalist, rights-foundationalist, constitutional theorist, irreducible constitution, concentration of power


No matter how hard they try, some constitutional theorists can't avoid being, at bottom, either democratic-foundationalists ("democrats") or rights-foundationalists. In the first part of this essay, I will offer a third way, insisting that at the heart of the American constitutional order is an irreconcilable conflict between these divergent accounts, that attempts to predicate constitutionalism on either democracy or rights cannot succeed. Our constitution (a term I will use to mean our constitutional order--text plus ... ) is, at the core, coreless. It cannot be resolved to a master predicate. It cannot be reduced to democracy or to rights. It is, in this way, the irreducible constitution. Part I will proceed in four steps. First: Constitutional theorists are, at the core, either democrats or rights-foundationalists. Neither position, as a foundationalist position, is consonant with our constitution. Second: The tension between democrats and rights-foundationalists is based in conflicting theories of self-government, one based in collective self- government, the other in individual self-government. But neither theory can be defended as foundational. Third: Our constitution renders these conflicts irresolvable, not because tools are lacking to resolve them, but because resolution depends on a type of foundationalist claim that our constitution rejects. Importantly, such rejection does not assert the falsity of the foundationalist claim that would be needed to support the primacy of any of the above (democracy, rights-foundationalism, or either theory of self-government). Rather, our constitution requires an agnostic position regarding such claims. This agnosticism is based not in a truth claim for agnosticism (that would be a good one!), but rather in second-order arguments about governance. Fourth: One might infer from the preceding that I am a rights-foundationalist and defender of the primacy of individual self-government, that my insistence on multiple repositories of power as central to our constitutional order commits me to a foundational position on one side of the debates I have described. I will explain why this charge is unfounded. One might also object that although rights- foundationalism is problematic, it is problematic not because ofthe threat of concentration of power, but because of the threat of anarchy. I offer some further thoughts on this matter, as well. After setting forth the theory of the irreducible constitution, I will try, in Part 1I, to apply some of the understandings of that theory to problems raised under the establishment clause and the free exercise clause of the first amendment. My theory of the irreducible constitution does, however, permit the government to compete with separate fonts of authority for the allegiance of the people. This means, among other things, that the government may operate schools and teach secular values in those schools. Thus, the religion clauses are Exhibit A for the theory of the irreducible constitution, for they enable the flourish- ing of multiple religions, block the capture of government by a dominant religion, and permit government to remain a potent force in pressing for common ground.