Benjamin Page, Sanford Levinson, Barbara Craig and Wallace Mendelson significantly improved the quality of this article. I contributed the errors.

1. 370 U.S. 421 (1962).

2. Powell, H. Jefferson, “Parchment Matters: A Meditation on the Constitution as Text,” Iowa Law Review 71 (1986): 1432–33.Google Scholar A constitutional perfectionist might be willing to change the meaning of the Constitution if circumstances where the change did not present moral issues. One suspects that the reason why most of the constitutional perfectionists discussed below are indifferent to recent proposals to reorder constitutional legislative-executive relationships is that they do not believe that the particular nature of checks and balances in the constitutional order is a matter of concern for moral and political philosophy.

3. Perry, Michael J., The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982), p. 115.Google Scholar

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8. Barber, Sotirios A., On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984), p. vii.Google Scholar See Murphy, Walter F., Fleming, James E. and Harris, William F., American Constitutional Interpretation (Mineola, NY: The Foundation Press, 1986), p. 1.Google Scholar

9. Monaghan, , “Our Perfect Constitution,” p. 358.Google Scholar

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11. See Brennan, William J. Jr., “Speech,” The Great Debate: Interpreting Our Constitution (Washington, D. C: The Federalist Society, 1985), pp. 18–25Google Scholar; Dworkin, , Rights, pp. 134–36.Google Scholar

12. See especially, Rae, Douglas et al. , Equalities (Cambridge, MA: Harvard University Press, 1981).Google Scholar

13. Graglia, Lino, “How the Constitution Disappeared,” Commentary 81 (1986), p. 23.Google Scholar

14. H. Jefferson Powell is the exception that proves the rule. See Powell, “Parchment Matters,” discussed below.

15. Kronman, Anthony T., “Alexander Bickel's Philosophy of Prudence,” Yale Law Review 94 (1985): 1571–72.CrossRefGoogle Scholar

16. I am relying on Kronman's interpretation of Bickel rather than more directly on Bickel's writings because Kronman explicitly argues that Bickel offered an alternative to perfect constitutionalism. I should note, however, that I generally agree with Kronman's interpretation of Bickel's jurisprudence.

17. Ibid., p. 1601.

18. Ibid., p. 1603.

19. Bickel's insistence that judges develop a set of prudential techniques that would enable them to realize how far the demands of political philosophy could be pushed in any particular political situation (Ibid., p. 1580) is also consistent with the principles of perfect constitutionalism. Prudence merely dictates the techniques a judge might use in the effort to reconstruct society in the image of the perfect political values of the Constitution.

20. Graglia, , “How the Constitution Disappeared,” p. 19.Google Scholar

21. Wolfe, , Rise of Modern Judicial Review, p. 11.Google Scholar

22. Graglia, , “How the Constitution Disappeared,” p. 27.Google Scholar

23. See Beard, Charles A., An Economic Interpretation of the Constitution of the United States (New York: The Free Press, 1935);Google ScholarSmith, J. Allen, The Spirit of American Goverment, ed. Stout, Cushing (Cambridge, MA: Belknap Press, 1965).CrossRefGoogle Scholar

24. Graglia, , “How the Constitution Disappeared,” p. 24.Google Scholar

25. One might note that Graglia does not seem to be particularly offended by judicial decisions affirming the constitutionality of statutes inconsistent with the intentions of the framers. See Ibid., p. 24. See also, Wolfe, , Rise of Modern Judicial Review, p. 354.Google Scholar

26. Ibid., p. 352–56.

27. Perry, , Constitution, p. x;Google ScholarWolfe, , Rise of Modern Judicial Review, p. 5.Google Scholar

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29. Bork, Robert H., “Neutral Principles and Some First Amendment Problems,” Indiana Law journal 47 (1971): 10.Google Scholar

30. Ibid., p. 2. Bork is best known for advancing the claim that courts should rely on the original intentions of the framers as sources for constitutional meanings. However, he defends that claim by relying on the democratic aspect of that mode of judicial review. Bork argues that in some circumstances, a majority has been willing to be ruled undemocratically. “Society,” he wrote, “consents to be ruled undemocratically within defined areas by certain enduring principles believed to be stated in, and placed beyond the reach of majorities by the Constitution” (Ibid., p. 3). I am not familiar with any work which purports to explain why present majorities should be bound by the restrictions that past majorities placed on themselves. See Smith, Rogers M., ‘“Don't Look Back, Something Might Be Gaining on You’: The Dilemmas of Constitutional Neoconservatives,” American Bar Foundation Research Journal 1987 (1987): 283.Google Scholar Indeed, Jefferson claimed that all constitutions expired after nineteen years, because after that time a majority of the citizens who so bound themselves would have been dead. SeeWills, Garry, Inventing America (Garden City, NY: Doubleday, 1978), p. 123–24Google Scholar.

31. Noting that the framers were not ethical relativists, Harry Jaffa has asserted that Bork's “history is bad history” (Jaffa, , Defenders of the Constitution: Calhoua versus Madison, A Bicentennial Cerebration [1987], p. 5Google Scholar). I doubt whether it is history at all.

32. Similarly, in Democracy and Distrust, John Hart Ely claims that “if there is such a thing as natural law, and if it can be discovered, it would be folly, no matter what our ancestors did or didn't think, to ignore it as a source of constitutional values.” Like Bork, , Ely, concludes that justices cannot use natural law theories when interpreting the Constitution because “the idea is a discredited one in our society,... and for good reason” (Democracy and Distrust, [Cambridge, MA: Harvard University Press, 1980]), p. 50.Google Scholar

33. Dostoevsky, Fyodor, The Brothers Karamazov, trans. Magashack, David (Middlesex: Penguin Books, 1978), p. 743.Google Scholar

34. Similarly, Henry Monaghan, after criticizing those who insist that principles of distributive justice provide the foundation of constitutional meaning, claims that “the perfection of our Constitution, if it has that quality, inheres in its guarantee of an open and fairly structured political process” (Monaghan, , “Our Perfect Constitution,” p. 396Google Scholar). See also, Ely, Democracy and Distrust, p. 101Google Scholar (noting that “overtl normative” defenses of his representative reinforcing theory of the constitution are “more important” than defenses based on constitutional history or language).

35. Barber, , On What the Constitution Means, p. 60.Google Scholar

36. See pp. 90–92, above.

37. For a more complete summary of undemocratic aspects of American political institutions, see Choper, Jesse, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (Chicago: University of Chicago Press, 1980), pp. 12–24Google Scholar; Shapiro, Martin, Freedom of Speech: The Supreme Court and Judicial Review (Englewood Cliffs, NJ: Prentice-Hall, Inc., 1966), pp. 17–25.Google Scholar

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42. See Horowitz, Donald L., The Courts and Social Policy (Washington, D. C: Brookings Institution, 1977), pp. 106–170.Google Scholar

43. Mansbridge, Jane J., Why We Lost the ERA (Chicago: University of Chicago Press, 1986), pp. 45–46.Google Scholar

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47. Ibid., p. 47.

48. See Bradwell v. Illinois, 83 U.S.130 (1873)Google Scholar; Goseart v. Cleary, 335 U.S.464 (1948).Google Scholar

49. For a more formal statement of the general principle of voting applied in the text, see Enelow, James M. and Hinich, Melvin J., The Spatial Theory of Voting: An Introduction (Cambridge: Cambridge University Press, 1984), pp. 42–51.Google Scholar

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51. See Barber, , On What the Constitution Means, p. 200.Google Scholar

52. But see Llewellyn, Karl N., “The Constitution as Institution,” 34 (1934): 1.Google Scholar

53. Huntington, Samuel P., Political Order in Changing Societies (New Haven: Yale University Press, 1968), p. 12.Google Scholar

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59. This point is, of course, debateable. See p. 101, below.

60. See Mcllwain, Charles Howard, Constitutionalism: Ancient and Modern, rev. ed. (Ithaca: Cornell University Press, 1947), p. 30.Google Scholar

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62. In a number of writings Stanley Fish has declared that this is really not an interesting problem because the nature of various interpretive communities will constrain the arguments that can be conceived and made in a given society. See Fish, , Is There a Text in This Class? The Authority of Interpretive Communities (Ca bridge, MA: Harvard University Press, 1980).Google Scholar As an empirical matter, Fish's point seems correct. However, it may be the case that an interpretive community will permit more arguments to be put on the floor than can reasonably be considered. This is the argument that I am currently making.

63. Hatch, Orin G., “The Supplemental Views of Senator Orin Hatch,” Report of the Congressional Committees Investigating the Iran-Contra Affair (Washington, D. C.: US. Government Printing Office, 1987), p. 666Google Scholar; North, Oliver L., “Testimony,” The Iran-Contra Puzzle (Washington, D. C.: Congressional Quarterly, Inc., 1987), C-75.Google Scholar

64. It is remarkable to note the parallels between the Iran-Contra Affair and the Watergate scandal. As Bickel noted, the excuse offered by the Nixon administration for its conduct, that they broke the law in a just cause, was identical to that frequently espoused by its political opponents. See Bickel, Alexander M., The Morality of Consent (New Haven: Yale University Press, 1975), p. 91–125.Google Scholar Similarly, the claim of the Reagan administration, that good political philosophy had to be good constitutional theory, is identical to that frequently espoused by its political opponents.

65. Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).Google Scholar

66. Hamilton, Alexander, Madison, James, and Jay, John, The Federalist Papers (New York: New American Library, 1961), p. 225.CrossRefGoogle Scholar

67. Ibid., p. 230.

68. See Ibid., p. 237 ("it is not necessary that the former be perfect: it is sufficient that the latter is more imperfect").

69. Jefferson, Thomas, The Portable Thomas Jefferson, ed. Peterson, Merrill D. (Middlesex: Penguin Books, 1975), pp. 235–36.Google Scholar

70. Burke, Edmund, Reflections on the Revolution in France, ed. O'brien, Conor Cruise (Middlesex: Penguin Books, 1969), p. 152.Google Scholar See Kronman, , “Bickel's Philosophy of Prudence,” p. 1598.Google Scholar

71. As noted above, Burke also thought that moral and political principles could not be derived through abstract speculation. My argument is that even a person who believed that there were rational answers to moral and political problems might prefer to retain tolerable political institutions.

72. See Burke, , Reflections, pp. 151–53.Google Scholar See also, Kronman, “Bickel's Philosophy of Prudence,” (noting that Bickel “dismisses as philosophical romantics those who promote sweeping institutional reforms for the sake of achieving a closer approximation to some ideal").

73. Hamilton, , Madison, , and Jay, , Federalist Papers, p. 233.Google Scholar This argument strikes me as the soundest objection to recent proposals for a constitutional convention. See Aquinas, Thomas, The Political Ideas of St. Thomas Aquinas, ed. Bigongiari, Dino (New York: Hafner Press, 1953), p. 81.Google Scholar

74. Burke, , Reflections, p. 120.Google Scholar

75. See Huntington, , Political Order, p. 15.Google Scholar

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77. See Shapiro, Freedom of Speech.

78. See Smith, “Political Jurisprudence.”