[2] See, for example, Robert Dahl's claim that "constitutional rules are not crucial, independent factors in maintaining democracy," nor are they important as "guarantors either of government by majorities or of the liberty from majority tyranny." Instead, constitutional rules are important in determining the bargaining advantages of groups within the political process. See A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956), p. 137.

[3] John Rawls's A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971) is an exception to this generalization. Rawls assumes from the outset that principles of justice are framed to apply to the basic structure of society (basic economic, political, and social institutions, taken as a system), and chapters 4 and 5 of Theory takes up issues about constitutional government, democracy, and political economy that are essential in realizing his principles of justice. See also Rawls's discussion of the role of stability in political (as distinct from moral) philosophy, in Political Liberalism (New York: Columbia University Press, 1993), p. xvii.

[4] See, for example, Brian Barry, Theories of Justice (Berkeley and Los Angeles: University of California Press, 1989); Ronald Dworkin, "What is Equality? Part 2: Equality of Resources," Philosophy and Public Affairs 10 (1981): 283-345; David Gauthier, Morals By Agreement (Oxford: Oxford University Press, 1986); Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974); Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986); Michael Sandel, LIberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982); Amartya Sen, Inequality Reexamined (New York: Russell Sage Foundation; Cambridge, Mass.: Harvard University Press, 1992).

[5] We disagree with Leo Strauss, who sees Lockean natural law theory as, in the end, Hobbesian. See his Natural Right and History (Chicago: University of Chicago Press, 1953), pp. 202-51. For a more discerning discussion of the different strands in Locke's view, see A. John Simmons, The Lockean Theory of Rights (Princeton: Princeton University Press, 1992), chap. 1.

[6] Thomas Hobbes, Leviathan, ed. Edwin Curley (Indianapolis: Hackett, 1994), chaps. 13, 17, and 18.

[7] John Locke, The Second Treatise of Government, in Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), [[section]]93.

[8] See Locke, Second Treatise , [[section]]91.

[9] Charles Secondat, Baron de Montesquieu, The Spirit of the Laws, trans. Thomas Nugent (New York: Macmillan, 1949), p. 150.

[10] See, for example, Rousseau's discussion of the limits of sovereign power in On the Social Contract, ed. Roger D. Masters, trans. Judith R. Masters (New York: St. Martins, 1978), Book 2, chap. 4. ¹¹ On democracy as a device for limiting power, see William Riker, Liberalism Against Populism: A Confrontation Between the Theory of Democracy and the Theory of Social Choice (San Francisco: Freeman, 1982).

[12] It might be argued that Marxism, with its economic base-political superstructure distinction, also played a large role in distracting attention from political institutions. But Marxism has never been a large influence in political science (or public law). Moreover, at the periods of its strongest influence (in the 1970s), it was preoccupied with a debate about the "relative autonomy of the state" that did emphasize the importance of institutions.

[13] "Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker," reprinted in section 2.

[14] For discussion, see James G. March and Johan P. Olsen, Rediscovering Institutions: The Organizational Basis of Politics (New York: Free Press, 1989).

[15] Democracy and the Market (Cambridge: Cambridge University Press, 1991), p. 35. On the importance of institutions in the theory and practice of democracy, see Przeworski, "Democracy as a Contingent Outcome of Conflicts," in Constitutionalism and Democracy, ed. Jon Elster and Rune Slagstad (Cambridge: Cambridge University Press, 1988), pp. 59-80.

[16] For an interesting illustration, see the collection of articles from a May 1993 symposium debating a new Ethiopian constitution in Constitutionalism: Reflections and Recommendations (InterAfrica Group, n.d.).

[17] Second Treatise, [[section]]137.

[18] Discourse on Political Economy, [[paragraph]]19.

[19] Hobbes criticizes this slogan for obscuring the essential role of power in governance. See Leviathan, pp. 465-66.

²⁰ Generality is commonly singled out as being of special importance, perhaps because the other conditions are simply assumed. John Austin distinguishes law from other commands by reference to the requirement of generality. See The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence (London: Weidenfeld and Nicolson, 1954), p. 000. And Carl Schmitt claims that "One quality cannot be renounced without nullifying the Rechtstaat: this is the general character of its legal norms. Herein lies the final guarantee of the traditional Rechtstaat's distinction between a law and a command, between reason and will. . . ." Cited in Rune Slagstad, "Liberal Constitutionalism and Its Critics," in Constitutionalism and Democracy, p. 107.

[21] This is an entirely non-institutional account of the rule of law, omitting all reference, for example, to the existence of an independent judiciary. For a more elaborate and more institutionally specific account, see Raz, "The Rule of Law and Its Virtue."

[22] Ronald Dworkin's conception of law as integrity advances a stronger connection the rule of law and community. See Law's Empire (Cambridge, Mass.: Harvard University Press, 1986).

[23] For an account of the rule of law that includes an appreciation of full particularity as one element within legal reasoning, see Cass Sunstein, "Political Conflict and Legal Agreement," in The Tanner Lectures on Human Values, vol. 17, ed. Grethe B. Peterson (Salt Lake City, Utah: University of Utah Press, forthcoming).

[24] See Evgeny B. Pashukanis, Law and Marxism: A General Theory (Worcester: Pluto Press, 1989).

[25] Hayek provides a fuller statement of his conception of the "true rule of law," and his criticisms of the disrespect for it characteristic of contemporary democracies, in The Road to Serfdom (Chicago: University of Chicago Press, 1944), The Constitution of Liberty (Chicago: University of Chicago Press, 1960), esp. chap. 14.

[26] Parenthetic page numbers are references are to works collected in these volumes.

[27] For discussion of Hayek's claims about freedom and the rule of law, and a response to criticisms of it (including the criticisms by Joseph Raz in his article in this collection), see John Gray, Hayek on Liberty, second edition (Oxford: Blackwell, 1986), pp. 61-71. Gray emphasizes the role of impartiality and neutrality, as well as generality, in Hayek's conception of law (p. 64).

[28] "This brings us to what in modern times has become the crucial issue, namely the legal limits of administrative discretion." F.A. Hayek, Constitution of Liberty, p. 212. This "crucial issue" is the subject of section 8.

[29] For Bentham and Austin, law consists of facts about commands and habits of obedience; for Hart, facts about social rules and their acceptance. See H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961).

[30] For the classical positivist critique, see John Austin, The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence (London: Weidenfeld and Nicolson, 1954); for Hart's full reformulation, see The Concept of Law. In chapter 9, he indicates the limited truth in natural law theory. John Gray indicates the connections between Hayek's view and the natural law tradition. See Hayek on Liberty, p. 68.

[31] See also Lon L. Fuller, The Morality of Law (New Haven, Conn.: Yale University Press, 1964).

[32] By contrast, Ronald Dworkin denies the positivist separation between law and morality--between legal reasoning and moral-political argument--by arguing that law is a system of rules and principles, not exclusively a system of rules. See "The Model of Rules I," in Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977), pp. 14-45.

[33] On legal indeterminacy, see Duncan Kennedy, "Form and Substance in Private Law Adjudication," Harvard Law Review 89, 8 (June 1976): 1685-1778; Roberto Unger, The Critical Legal Studies Movement (Cambridge, Mass.: Harvard University Press, 1983).

[34] The debates about appending a bill of rights to the U.S. constitution were not about the importance of rights generally, or of the particular rights ultimately included, but about whether such inclusion would provide stronger protections for rights. For some of the debate, see The Founders' Constitution: Volume 1, Major Themes, ed. Philip B. Kurland and Ralph Lerner (Chicago: University of Chicago Press, 1987), chap. 14.

[35] See, for example, Robert Bork, The Tempting of America (New York: The Free Press, 1990).

[36] For a complete statement of Ely's view, see his Democracy and Distrust (Cambridge, Mass.: Harvard University Press, 1980); for a broadly parallel view about judicial review, see Robert Dahl, Democracy and Its Critics (New Haven, Conn.: Yale University Press, 1989), chaps. 12, 13; for an alternative conception of the democratic function of judicial review, see Bruce Ackerman, We the People: Foundations (Cambridge, Mass.: Harvard University Press, 1991). According to Ackerman's account of "dualist democracy," the role of the Supreme Court in the American system is in part to uphold higher-law-making activities of the people, undertaken during periods of heightened political engagement, from encroachments by the government in periods of normal politics. Thus, when the Court protects a substantive (non-procedural) right -- for example a right of privacy -- from government intrusion, that protection can sometimes be interpreted as an effort to enforce the will of the people as expressed during a period of constitutional politics, rather than as an illegitimate extension of the Court's role beyond its proper domain of enforcing democratic procedure.

[37] In connecting the free-speech guarantee to the requirements of democratic process, and consequently limiting it to political speech, Ely's view resembles Meiklejohn's (see below, pp. 00-00).

[38] The large substantive disagreement between Dworkin and Ely concerns privacy rights, in particular the Supreme Court's 1973 decision to protect a right to abortion on grounds of privacy. See Roe v. Wade, 410 U.S. 113 (1973). Ely was an early critic of that decision, in his "Wages of Crying Wolf: A Comment on Roe v. Wade," Yale Law Journal 82 (1973): 920-946. Dworkin has defended Roe v. Wade, most recently in Life's Dominion (New York: Knopf, 1993). For further discussion of judicial review and democracy, see Dworkin's "Democracy, Equality and Constitution," Alberta Law Review 28, 2 (1990): 324-46.

[39] See Riker, Liberalism Against Populism.

[40] This view was adopted by the U.S. Supreme Court in the case of Lochner v. New York 198 U.S. 45 (1905).

[41] For criticisms of Dahl's view, see Jonathan Casper, "The Supreme Court in National Policy-Making," American Journal of Political Science 70, 1 (1976): 50-63.

[42] Montesquieu, Spirit of the Laws, pp. 151-52.

[43] John Locke, Second Treatise of Government, [[section]]143.

[44] According to Akhil Amar, federalism in the U.S. case also serves to uphold the sovereignty of the people rather than the government. See "Of Sovereignty and Federalism, The Yale Law Journal 96, 7 (June 1987): 1425-1520.

[45] For a summary of debate about "race-to-the-bottom" theories of state corporation charters in the United States, see Roberta Romano, ed. Foundations of Corporate Law (Oxford: Oxford University Press, 1993), pp. 87-99.

[46] A fuller version of the argument is presented in Paul E. Peterson and Mark C. Rom, Welfare Magnets: A New Case for a National Standard (Washington, D.C.: The Brookings Institution, 1990).

[47] For contrast, see Charles Sabel, "A Measure of Federalism: Assessing Manufacturing Technology Centers," Research Policy (forthcoming, 1995).

[48] For criticism, see the subsequent debate with Linz, Donald Horowitz, and Seymour Martin Lipset in Journal of Democracy 1, 4 (Fall 1990): 73-91.

[49] See his Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries (New Haven, Conn.: Yale University Press, 1984).

[50] See Vincent Blasi, "The Checking Value in First Amendment Theory," Weaver Constitutional Law Series, no. 3 (American Bar Foundation, 1977).

[51] In his classical defense of free expression in On Liberty, John Stuart Mill complains that the suppression of speech requires an "assumption of infallibility," and that such an assumption is false and, in view of the "utility of truth," irrational. See On Liberty, chap. 2. In the articles included in this volume, Meiklejohn and Scanlon aim to put Millian views about free expression on a non-utilitarian foundation.

[52] Abrams v. United States, 250 US 616, 630.

[53] For a more complete statement of Meiklejohn's views, see Political Freedom: The Constitutional Powers of the People (New York: Harper, 1960). Meiklejohn's views had a large influence on first-amendment jurisprudence. In what was arguably the most important free-speech decision in the past 40 years, New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court protected citizens from penalty for libeling public officials, except in the case of deliberate of reckless falsehoods. Much of the language in the opinion suggests the Meiklejohnian conception of free speech as a precondition of self-government. For discussion, see Harry Kalven, Jr., "The New York Times Case: A Note on 'The Central Meaning of the First Amendment'," Supreme Court Review 1964; Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (New York: Random House, 1991), p. 154.

[54] Elaine Scarry's article in volume 4 advances a parallel interpretation of the second amendment protection of the right to bear arms.

[55] For other defenses of that view, see Robert Bork, "Neutral Principles and Some First Amendment Problems," Indiana Law Journal 47, 1 (1971): 1-35; William J. Brennan, Jr., "The Supreme Court and the Meiklejohn Interpretation of the First Amendment," Harvard Law Review 79, 1 (1965); Cass Sunstein, Democracy and the Problem of Free Speech (New York: Free Press, 1993). For criticism, see Joshua Cohen, "Freedom of Expression," Philosophy and Public Affairs 22 (1993): 207-63.

[56] For Scanlon's own criticisms of this view, see his "Freedom of Expression and Categories of Expression," University of Pittsburgh Law Review 40 (1979): 519-50.

[57] The U.S. Supreme Court decisively rejected this view in New York Times v. Sullivan, 376 U.S. 254 (1964), holding that, at least in the case of public figures, neither reputational injury, nor falsehood, nor both working together were sufficient to support a libel judgment. Instead, what was needed was a showing of "actual malice"--that the person or agency committing the libel knew that the defamatory falsehood was false or showed a "reckless disregard of whether it was false or not." In arriving at this conclusion the court made reference to "the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open." 376 U.S. 254, at 270.

[58] See Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass.: Harvard University Press, 1987); Towards a Feminist Theory of the State (Cambridge, Mass.: Harvard University Press, 1993); for criticism, see Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights (New York: Scribner, 1995); Joshua Cohen, "Freedom, Equality, Pornography," in Justice and Injustice in Law and Legal Theory, ed. Austin Sarat and Thomas Kearns (Ann Arbor, Michigan: University of Michigan Press, forthcoming).

[59] Ordinances of this kind were passed in the 1980s in both Minneapolis and Indianapolis, but neither took effect. The Minneapolis regulation was vetoed by the Mayor; the Indianapolis ordinance was overturned by the courts as incompatible with the first amendment's free speech guarantee. Indianapolis, Ind., City-Council General Ordinance No. 35 (June 11, 1984), overturned in American Booksellers Ass'n. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), affirmed without opinion, 475 U.S. 1001 (1986).

[60] For other defenses of restrictions, see Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberle Williams Crenshaw, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder: Westview Press, 1993).

[61] The autonomy that Fiss is prepared to regulate appears to be quite different from the autonomy that Scanlon locates at the foundation of free expression. Fiss's autonomy appears to be the equivalent of choice; Scanlon's is a matter of independence of judgment, in particular of the judgment of members of the audience. See also Owen Fiss, Liberalism Divided (Boulder, Col.: Westview, 1995), and The Needs of Freedom (Cambridge, Mass.: Harvard University Press, forthcoming).

[62] On the distinction between participation and contestation, and their role as indices of democratic government, see Robert Dahl, Polyarchy: Participation and Opposition (New Haven, Conn.: Yale University Press, 1971).

[63] Other requisites include a free press, and rights of association and expression.

[64] For classical statements, see E. E. Schattschneider, The Semi-Sovereign People (Hinsdale, Ill.: Dryden Press, 1975); V.O. Key, Southern Politics in State and Nation (New York: Knopf, 1949). This optimistic view of strong parties inverts the Michelsian view that strong political parties are not simply internally oligarchic, but are the modern form of oligarchic domination in the political order. See Robert Michels, Political Parties: A Sociological Study of the Oligarchical Tendencies of Modern Democracy, trans. E. Paul and C. Paul (New York: Collier Books, 1962). It also responds to an hostility to political parties in favor of more voluntarist groupings of citizens. See, for example, Mosei Ostrogorski, Democracy and the Organization of Political Parties, trans. Frederick Clarke (New York: Macmillan, 1902)

[65] See Charles Lindblom, Politics and Markets (New York: Basic Books, 1977); Adam Przeworski, Capitalism and Social Democracy (Cambridge: Cambridge University Press, 1985); Adam Przeworski and Michael Wallerstein, "Popular Sovereignty, State Autonomy, and Private Property," Archives Europeennes de Sociology 27 (1986): 215-50; Joshua Cohen and Joel Rogers, On Democracy (New York: Penguin, 1983).

[66] See, for example, Joseph Schumpeter, Capitalism, Socialism, and Democracy (New York: Harper and Row, 1950), and William Riker, Liberalism Against Populism. Whereas Schumpeter traces his minimalist expectations to voter irrationality, Riker's work criticizes conceptions of a coherent popular will within the rational choice framework for political theory that traces to Kenneth Arrow's Social Choice and Individual Values (New York: Wiley, 1951).

[67] For a full statement of Downs's view, see his An Economic Theory of Democracy (New York: Harper, 1957).

[68] See also Charles E. Lindblom, Politics and Markets .

[69] On the implications of party weakness for citizen participation, see Walter Dean Burnham, The Current Crisis in American Politics (Oxford: Oxford University Press, 1982); Steven J. Rosenstone and John Mark Hansen, Mobilization, Participation, and Democracy in America (New York: Macmillan, 1993).

[70] For a companion article, arguing this case on the basis of US data, see Ian Budge and Richard Hofferbert, "Mandate and Policy Outputs: US Party Platforms and Political Expenditures," American Political Science Review 84, 1 (1990): 111-31.

[71] Cox and McCubbins suggest a different criticism of the strong parties view. They reject the conventional "weak parties" description of the United States, at least as that description applies to Congress. But they also reject the view that strong parties are an attractive feature of a well-functioning democratic legislature. Instead, strong parties operate like cartels, dominating the institution for the advantage of their own members. See Gary W. Cox and Mathew D. McCubbins, Legislative Leviathan: Party Government in the House (Berkeley and Los Angeles: University of California Press, 1993).

[72] For a Przeworski's full statement of the theory of capitalist democracy, see his Capitalism and Social Democracy (Cambridge: Cambridge University Press, 1985); on the history of social democracy, see Adam Przeworski and John Sprague, Paper Stones: A History of Electoral Socialism (Chicago: University of Chicago Press, 1986).

[73] See also Lani Guinier, The Tyranny of the Majority (New York: Basic Books, 1994).

[74] See Shaw v. Reno 113 S. Ct. 2816 (1993).

[75] For discussion of proportional representation, see John Stuart Mill, Considerations on Representative Government, in Collected Works, Vol. 19, ed. J.M. Robson (Toronto: University of Toronto Press, 1977), pp. 371-577; Charles Beitz, Political Equality (Princeton: Princeton University Press, 1989), chap. 6.

[76] J.-J. Rousseau, Social Contract, Book 3, chaps. 12-18; Karl Marx, The Civil War in France, sec. 3, in The Marx-Engels Reader, ed. Robert Tucker (New York: Norton, 1978, second edition), pp. 629-642. Whereas Rousseau emphasizes the importance of direct participation, Marx underscores as well that all offices, including administrative and judicial are to be filled by elections, subject to strong rights of recall; that officials are to be paid the wages of an ordinary worker; and that the Commune was "a working, not a parliamentary body, executive and legislative at the same time" (632). These features made the Commune the "political form under to work out the economic emancipation of labor" (635).

[77] Rousseau, Social Contract, Book 1, chap. 8, [[paragraph]]2.

[78] Rousseau, Social Contract, Book 3, chap. 15, [[paragraph]]3.

[79] Rousseau, Social Contract, Book 3, chap. 14, [[paragraph]]1.

[80] For discussion of the limits of representation, and the virtues of participation as an answer to political alienation, see Benjamin R. Barber, Strong Democracy: Participatory Politics for a New Age (Berkeley and Los Angeles: University of California Press, 1984) and Carole Pateman, Participation and Democratic Theory (Cambridge: Cambridge University Press, 1970).

[81] For a critical discussion of direct democracy, see Robert Dahl, Democracy and Its Critics, chap. 1. We take the points about exclusivity and scale from Dahl's discussion.

[82] For a reply, see Hanna F. Pitkin and Sara Schumer, "On Participation," Democracy 2 (1982): 43-54.

[83] Rousseau proposes an answer in Social Contract, Book 4, chap. 2, [[paragraph]][[paragraph]]8.

[84] On the disadvantages of the community and conformity required by direct democracy, see George Kateb, "The Moral Distinctiveness of Representative Democracy," Ethics 91 (April 1981): 357-74.

[85] According to Giovanni Sartori, we delude ourselves if we take referenda and initiatives to be "modern equivalents and substitutes for direct democracy." See his The Theory of Democracy Revisited: Part Two, The Classical Issues (Chatham: Chatham House Publishers, 1987), p. 283. The reason for classifying them as direct forms is that they both have citizens making substantive decisions. But Sartori is right to underscore the difference between referenda and initiatives, on the one hand, and democratic assemblies on the other. The criticism about diminishing the role of deliberation applies only to the former.

[86] See Yannis Papadopolous, "A Framework for Analysis of Functions and Dysfunctions of Direct Democracy: Top-Down and Bottom-Up Perspectives," Politics and Society (1996, forthcoming). Papadopolous's essay, published too late to be included in these volumes, criticizes referenda and initiatives for foreclosing political deliberation, and discusses the extensive literature on direct democracy written in French and German and focused on the Swiss experience.

[87] The Russian Revolution (Ann Arbor, Michigan: University of Michigan Press, 1961).

[88] The United States is one of four OECD countries with contribution limits. All the others rely in greater measure than the US on public financing, and the Scandinavian countries have no contribution or expenditure limits at all. See Ellen S. Miller and Joel Rogers, The World of Campaign Finance (Madison, WI and Washington, DC: Center for New Democracy and Center for Responsive Politics, 1992).

[89] Friedrich A. Hayek, Law, Legislation, and Liberty: Volume 3, The Political Order of Free People (Chicago: University of Chicago Press, 1979), pp. 13, 15 (emphasis added). For critical discussion of this neo-liberal, constitutionalist response, and of the other responses sketched in the paragraph, see Joshua Cohen and Joel Rogers, "Secondary Associations in Democratic Governance," pp. 397-416.

[90] Social Contract, Book 2, chap. 3, [[paragraph]][[paragraph]]3-4.

[91] See Federalist Papers #10 (1787).

[92] Alexis de Tocqueville, Democracy in America, trans. George Lawrence (New York: Harper & Row, 1988), p. 524. See also Robert Putnam, Democracy and the Civic Community: Tradition and Change in an Italian Experiment. (Princeton: Princeton University Press, 1992).

[93] On the intellectual background of pluralism, see The Pluralist Theory of the State: Selected Writings of G.D.H. Cole, J.N. Figgis, and H.J. Laski, ed Paul Q. Hirst (London: Routledge, 1989); Earl Latham, "The Group Basis of Politics: Notes for a Theory," American Political Science Review 46, 2 (June 1952): 376-97.

[94] For fuller discussion of organizational pluralism and the strategies for addressing the troubles it can create, see Robert Dahl, Dilemmas of Pluralist Democracy: Autonomy v. Control (New Haven, Conn.: Yale University Press, 1982).

[95] E.E. Schattschneider, The Semisovereign People: A Realist's View of Democracy, (Illinois: The Dryden Press, 1975), pp. 34-5.

[96] For criticisms of territorial representation, and proposals for more functional schemes, see G.W.F. Hegel, Philosophy of Right, trans. T.M. Knox (London: Oxford University Press, 1952); Emile Durkheim, The Division of Labor in Society, trans. George Simpson, second edition (New York: Free Press, 1933), p. 27. On the limits of functional representation, see Paul H. Douglas, "Occupational Versus Proportional Representation," American Journal of Sociology 29, 2 (September 1923): 129-57.

[97] For Schmitter's earlier reflections on neocorporatism, see, among others, his "Still the Century of Corporatism," Review of Politics 36 (January 1974): 85-131, and "Interest Intermediation and Regime Governability in Contemporary Western Europe," in Suzanne Berger, ed., Organizing Interests in Western Europe (Cambridge: Cambridge University Press, 1981), pp. 287-330.

[98] That is one of the many ways of characterizing corporatism. For a valuable discussion of the distinction between corporatism as a system and corporatist arrangements as a form of political exchange between groups and government, see Colin Crouch and Ronald Dore, "Whatever Happened to Corporatism?," in Colin Crouch and Ronald Dore, eds., Corporatism and Accountability: Organized Interests in British Public Life (Oxford: Oxford University Press, 1990), chap. 1.

[99] For a debate on the Cohen-Rogers proposal, see Joshua Cohen and Joel Rogers, Secondary Associations and Democracy (London: Verso, 1995), which includes "Secondary Associations in Democratic Governance," and replies by Paul Hirst, Ellen Immergut, Ira Katznelson, Andrew Levine, Jane Mansbridge, Claus Offe, Phillipe Schmitter, Wolfgang Streeck, Andrew Szasz, and Iris Marion Young.

[100] For discussion of the idea of deliberative arenas, see Joshua Cohen and Joel Rogers, "Solidarity, Democracy, Association," in Wolfgang Streeck, ed., Staat und Verbände, Sonderheft der Politischen Vierteljahresschrift (Wiesbaden: Westdeutscher Verlag, 1995).

[101] Theodore J. Lowi, The End of Liberalism: The Second Republic of the United States, second edition (New York: W.W. Norton and Company, 1979), esp. chap 3.

[102] For an important statement of the increasing dependence of private persons on state action, see Charles Reich, "The New Property," Yale Law Journal 73 (1964): 733-87.

[103] Se also Susan Sturm, "A Normative Theory of Public Law Remedies," Georgetown Law Journal 79 (1991): 1357-1446.

[104] First presented in 1969 in his book The End of Liberalism, pp. 295-313.

[105] See also Hayek, The Road to Serfdom . Despite certain parallels in their views about the affirmative state, there is one large difference between Lowi and Hayek. Where Hayek thinks that an affirmative state can only generate servile dependencies, and that a constitutional state with the rule of law must be sharply limited, the idea of Lowi's "juridical democracy" is to uphold the rule of law in an affirmative state.

[106] See also Cass Sunstein, The Partial Constitution (Cambridge, Mass.: Harvard University Press, 1993).

[107] For a classic statement, see Robert Hale, "Coercion and Distribution in a Supposedly Non-Coercive State," Political Science Quarterly 38 (1923): 470-494..

[108] For criticism of this program of insulation, see the discussion of civic republican cures for the mischiefs of faction in Cohen and Rogers, "Secondary Associations in Democratic Governance," pp. 406-11.

[109] Consider for example the Ship Money controversy prior to the English Civil War. Beginning in 1635, Charles I sought to raise funds for an anti-Dutch fleet by relying on an alleged right of the Crown to tax communities for the purposes of raising a navy, should there be, in the Crown's judgment, a threat to the realm. Parliament claimed to share the right to judge whether such a threat existed, and to deny funds should it disagree with the Crown's judgment. According to Richard Tuck, Hobbes's earliest political writing (The Elements of Law) was provoked by this controversy, in which Hobbes endorsed the royalist position.

[110] See Michael Doyle's two-part essay, "Kant, Liberal Legacies, and Foreign Affairs," Philosophy and Public Affairs 12 (Summer; Fall, 1983): 205-35; 323-53. Of course well-established democracies have routinely intervened in the affairs on lesser powers, including states with long-standing electoral institutions. The extreme case is US intervention to prevent the election of Allende in Chile in 1970, and subsequent efforts to destabilize the government. At the time, Chile had a nearly unbroken record of competitive elections, extending back to 1840.

[111] Schmitt sees the emergency as revealing the basic truth about the modern state: that Machtstaat underlies Rechtstaat, decision lies behind norm, and existential distinctions between friend and enemy are more fundamental than law and reason. See The Concept of the Political, trans. George Schwab (New Brunswick, N.J. : Rutgers University Press, 1976).

[112] Cited in Lobel, p. 1386.

[113] For a more detailed set of institutional proposals to cabin executive power and reinforce checks-and-balances, see Harold Hongju Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair (New Haven, Conn.: Yale University Press, 1990), esp. chap. 9.

[114]See, for example, Stephen E. Ambrose, Rise to Globalism: American Foreign Policy Since 1938, fifth edition (New York: Penguin Books, 1988) for a review of American military involvements in the Dominican Republic, Guatemala, Cuba, Vietnam, the Philippines, Iran, Angola, Afghanistan, Nicaragua, El Salvador, and Grenada. Since the fifth edition of Ambrose's book, the United States has used military force in Panama, Haiti, Somalia, Bosnia, and Iraq.

[115] That doctrine is stated in especially sweeping terms by Justice Sutherland in United States v. Curtiss-Wright Export Corp..,299 U.S. 304, 319-20 (1936).

[116] For a full presentation of this view of consent theory, see Carole Pateman, The Problem of Political Obligation: A Critique of