It could be said that Isaiah Berlin has written more extensively on freedom than anyone since John Stuart Mill, but the essentially rational dimension of freedom has become virtually obliterated in his writings. What Berlin has concealed from himself is the fact that abstract freedom, like other mere abstractions, is not to be found, but at least he has sensed that the limited latitude of alternatives implicit in his moral pluralism would circumscribe the unlimited extension of freedom. It is not enough, however, for him to recognize the precariousness of the full and unrestrained exercise of freedom implicit in that pluralism, for he must face up to the realization that only a standard other than freedom can make limitations on freedom possible. But we are not aware from his published writings that he ever considered that as a possibility.

Alexis de Tocqueville is not easily characterized as either a liberal or a conservative. In this respect he resembles Edmund Burke. Both may be best understood as “liberal conservatives”—figures who straddled both camps. On a number of specific dimensions, including their attitudes toward aristocracy, colonialism, property, rationalism, the tyranny of the majority, pluralism, and the meaning of history, they are remarkably similar. Their thinking foreshadows the rapprochement between liberals and conservatives in the latter half of the twentieth century reflected in the prominence of right-of-center parties and leaders and in the work of such political thinkers as Raymond Aron and Michael Oakeshott.

Tocqueville's account of judging unites two concerns separated in recent debates over constitutional interpretation, use of discretion to serve the rule of law and respect for tradition. In Planned Parenthood v. Casey the majority upholding Roe is properly concerned with rule of law, while Justice Scalia properly criticizes departures from text and tradition. However, both evince a skepticism which undermines these concerns. This raises differences between American constitutionalism prior to Holmes and the rival strains of legal realism now dominant. Tocqueville's judicial statesmanship would perpetuate the Constitution by preserving the principles of its letter and spirit. Holmesean judges lack the classic common law basis of this jurisprudence and should not exercise discretion unguided by our founding principles. The jurisprudence of individualism yielded by activist Holmesean skepticism is inadequately opposed by Holmesean skeptical restraint and better addressed by a common law constitutionalism.

This paper explores the process of constitutional dialogue through the consideration of anarea of case law—separation of powers—where the U. S. Supreme Court issued significant decisions in the 1980s and where there was much discussion among the Court's attentive listeners about the significance of the legal changes represented in the Court's opinions. The implications of the separation of powers cases were not well understood by “the interpretive community.” Many observers believed that the Court was prepared to dismantle the administrative state, abandoning its long-standing precedent supporting independent regulatory agencies. This outcome did not occur. Using internal memoranda, briefs, court opinions, and other public documents, I explore the manner in which this institutional communication took place and the factors that interfered with the ability of the Court to express clearly its intent and its audience to understand that intent.

Despite considerable recent scholarly attention to the constitutional amending process, no contemporary work on the subject has analyzed the set of seven proposed amendments that Francis Lieber published in 1865, after circulating them in Congress the previous year. These proposals are important both because of Lieber's role in the founding of American political science and because of the manner in which Lieber justified change at a time when many had come to regard the Constitution as a sacred and untouchable document. Lieber was able to strike an appropriate balance between respect for the Constitution and a willingness to adapt it to change. Unlike some theorists who followed, Lieber further advocated an organic view of society, law, and Constitution, without undermining the importance of formal processes of change. There is circumstantial evidence that Lieber's proposals may have influenced the formation of the Thirteenth and Fourteenth, albeit not the Fifteenth, Amendment. As importantly, Lieber offered important justifications for formal amendment at a time when others were advocating extraconstitutional change. Because Lieber placed his proposals within a wider philosophical context, his justification for prudent use of the amending process continues to be relevant at a time when much different issues are on the national agenda.

Recent scholarship has demonstrated that the language of subjective natural rights can be found in a wide variety of medieval juristic and scholastic texts. This is part of a general trend in the study of political ideas that stresses the continuity between medieval and modern political values. However, many leading scholars of medieval political ideas maintain that no language of subjective natural rights can be found in Aquinas's political writings, based as they are on a famous objective definition of right (jus) as the object of justice (justitia). Other scholars argue that Aquinas's notion of subjective rights is peripheral to his political philosophy. The essay argues that Aquinas, while commenting on canon law texts, explicitly posits a subjective natural right to marry, based on the natural equality and natural liberty of all human beings. This can be seen by his claim that a slave may contract marriage, even without the consent of the master. This is one example of an instance in which Aquinas refers to specific legal issues in order to explicate his understanding of liberty and right. For Aquinas there are certain areas of liberty or mastery (dominium) that are exempt from all human authority, and wherein a person has rights to decide how to pursue natural human goods.