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Well said and persuasive. Nevertheless, in their best efforts to thwart absolutism without surrendering to the excesses of the French Revolution, the Founders settled on republicanism that provided, and provides still, the framework of a representative democracy. While some distrusted, even feared, “democracy” as mob rule, others supported it as an antidote to absolute monarchism, and all knew that they must compromise in order to produce any federation at all. Those compromises produced the Constitution, guarding against absolutism while respecting representative democracy in acknowledging government’s accountability to the people in elections where the majority rules. In practice, representative democracy soon outpaced, as some of the Founders had feared, the restraints against absolutism. Those practices, however, did not -- as feared -- eliminate all restraints against absolutism. Rather, they helped shape the practice of a representative democracy, where there is -- or at least, was -- a generally accepted view that government ought to be limited in ways -- the First Ten Amendments -- regardless of majority rule. In the very act of accomplishing that compromise, they created the tension between the fear of absolutism and the spread of representative democracy that served us well, and still does. To this day our politics is such a compromise between the fear of absolutism and the demand for participation in the political process -- the spread of suffrage. We must return, then, again and again, to a trust that there is a decisive general will against absolutism because, to live in the real world is to understand that the First Ten Amendments always will be searched for practical application which will be determined by the value and force of words. The nub is not whether the “meaning” will change with political currents but the method of arriving at change.

Trying to prevent all change is pointless. Some of it happens anyway, despite our efforts against it. But, it seems to me, we can prevent fundamental alternation of our chosen method of change -- that is, change through the constitutional process. That’s the core, around which all else orbits. To accept, then, an individual’s “right” to interpret the Constitution in his own way is to accept a blow that tilts the core and throws out of course all the other orbits.

I agree entirely that “small” and “locally” do have sensible definitions -- sensible at least to me. But they are by no means universally-accepted definitions and political disputes about them ought to be resolved by the political method we have chosen, not by fiat or by some self-selected “individualist-objectivist.” For me, “small” and “locally” are perhaps the most injured of all concepts in our politics. Without expecting a return to a nation of small farmers and shopkeepers, it seems to me that we could have arrived at better compromises than those which produced Enron and the Department of Education.

I stress representative democracy because that’s the way we practice politics in this Republic. We are a Republic created by our Constitution. That same Constitution created the framework and institutions of our representative democracy. The descriptions are not mutually exclusive nor in dubious battle. A Republic is “a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law.” That describes representative democracy.

You write: Democracy, especially egalitarian, implies that my desires of the moment are to somehow make their way into the process and there was nothing further from the founders' intent. But, why was that? It was to keep the tyranny of the majority in check. Sure Numbers matters and deciedes things. But only those Numbers and by those processes framed in the diverse process of our constitutions. Thereby the Majority is kept from (1) violating by whim of the moment, (2) intemperence, (3) the will of demogogues, (4)violating prescriptive principle honored from time immemorial (as opposed to abstract rights), and (5)never being given the ability to announce any One decision, of merely 51%, as the ultimate public will.

We can’t have “numbers don’t matter and don’t decide things” and “sure numbers matter and decide things.” Unless we insert “sometimes,” the conflict boggles our mind’s effort to grasp the whole. Besides, neither statement is precisely true when applied to the Constitution. Numbers -- and other things -- matter even with the sacred Bill of Rights. These were intended to be rights that government was prohibited from contravening for any reason. Still, the Constitution itself provides ways to contravene them. Numbers decide, for example, who gets elected to the Senate and the presidency and, therefore, who gets appointed to the Supreme Court. The Supreme Court can decide that citizens have the right to keep and bear arms only as part of the militia; in other words, the judges decide what the Constitution means. Further, the Constitution provides a way for the Constitution itself to be changed by amendment. A constitutional amendment through the elected (where numbers count) Congress and a vote of 3/4 of the states or through a Constitutional Convention (membership appointed by the state legislatures, where numbers count) could remove the Second Amendment and replace it with “no citizen has the right to keep or bear arms.” That would be devastating, but it still would be “legal” and within our constitutional process. That can happen but it hasn’t. Why? From the Founders onward the citizenry have generally favored a middle course between extremes, sometimes going off impulsively in one direction, then reestablishing equilibrium by returning toward the middle reaches of painful compromise. If and when this habit fails, the method of change we have chosen may fail as well. To have a system that may fail does not mean it must inevitably fail. This is part of the risk and tension of our representative democracy.

The framework is neither absence nor counterpoint. It is a method, a process, through which disputes about “meaning,” “good,” “conduct” and others can be resolved in a manner approved by most of the participants. Sowell may criticize “utilitarian primacy” but he’ll get no argument from me. After all “utilitarian primacy” describes monarchy, socialism, autocracy or any other method of organizing a community. The Constitution does not establish “the greatest good” or “abstract rights.” It establishes the process through which disputes over what constitutes “the greatest good” or “abstract rights” can be resolved without resort to arms. Even then, it failed at least once in our national experience, when passions overwhelmed respect for the constitutional process.

You write: In your third paragraph, I agree the citizen must submit to just and proper authority. But he also must resist and fight improper authority of the acquisitive nature of those in authority will overturn his society. So if I agree that Judges Interpret as well as Adjudicate, I will always make that resistance when they Legislate rather than Interpret. So you see that we are once again back to the plain meaning of Words.

In the “plain meaning of words,” what is “just and proper authority”? What is “improper authority”? It is because these phrases are not self-evident in all places and cases and times that they are so frequently disputed. The Constitution does not explain them; instead, it gives the citizen a process for resolving the disputes in ways that are applicable in his daily life and business. The judicial system is part of that process. When a judge goes beyond interpreting and legislates, as I think some do, what is the process for determining that the judge “legislated” and,therefore, his judgment is null? Right answer: The process provided by the Constitution. Wrong answer: Each person will decide for himself.

About smoking your pipe in your (future) bookstore. As we say in Abilene, go ahead on. If it’s against the law, however, and you claim the “constitutional” right to do it anyway, you may be punished according to the law. Meanwhile, I’ll claim the “constitutional” right not to be saddled with your smoking-related illnesses. And we’ll let the constitutional process resolve it. Fair enough?

Some great summation in your positions given in your thoughtful post.

I can't give a very through discussion to this at this time but I will try to clear up a couple of items. By using the term Numbers as opposed to "majority rule" I was trying to stress Process, that process given in the Constitution. The Constitution, the rules of the branches established thereunder, and the various rules of the Federal courts, establish many rules of Numbers seperate and different from plain Majority. So, democracy or majority rule, is a simplistic standard, actually much foriegn to our tradition.

Secondly, the evening address by Ann Coulter I attended a couple of years ago comes to mind. Let's do what she suggests and ask prospective Judges as a qualifying question: "Are you prone to hallucinating or seeing Pernumbri when reading the US Constitution." That is where we have gone wrong.

Whether its the activism on the court that led to Dred Scott, or leftist activism that creates things whole cloth, in no way are those Judges anything but the members of government most removed from appointment from, or repair by, the traditonal participatory representative scheme that is our heritage, whether called Democracy or any other name.

If our "democratic" tradition was the bar to monarchial tendancies of our Anglo heritage, it needs to surely be the bar to Rule by Judges (Kirk's term for that escapes me at the moment)

There are whole fields of questions, about the reach of government, outside of the Private Property question and certainly outside of those areas beyond Public Accomodation, where I think I would be agreeing with you. But, you have brought the blunderbuss of a great arguement to do battle in a pretty clouded area of dispute here, hence the need I felt for the original distinctions I drew.

If prohibition of the usage of tobacco is the end of all these measures, why then it should be argued on its own merits, because that is what it seems to many that the effort is for. And like Prohibition of liquor, frail mankind, won't abide that much good government.

I hope to continue the issue of communitarian perview on other threads and I will have hoped to get Robert Nisbet read prior to taking you on there, LOL.

The Supreme Court can decide that citizens have the right to keep and bear arms only as part of the militia; in other words, the judges decide what the Constitution means. Further, the Constitution provides a way for the Constitution itself to be changed by amendment. A constitutional amendment through the elected (where numbers count) Congress and a vote of 3/4 of the states or through a Constitutional Convention (membership appointed by the state legislatures, where numbers count) could remove the Second Amendment and replace it with "no citizen has the right to keep or bear arms." That would be devastating, but it still would be "legal" and within our constitutional process.
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Good grief.

You have completely ignored one of the founding principles of our government. -- That we have unalienable rights to life, liberty and property.
This concept is addressed in the Bill of Rights twice, because it was being ignored & violated by states after the civil war, under the erroneous USSC 1833 decision, Barron v Baltimore.
Our basic inalienable rights can not be infringed by further amendments.
They are inherant natural rights, that are not, and never have been subject to the majority type rule that you imagine our constitution allows.

Nisbet in the Quest for Community states:

Disraeli, Newman, Tocqueville, Bourget, Godkin, Babbitt, all of them, down to such conservatives of our own day as Oakeshott, Voegelin, Jouvenel and Kirk, have stressed nothing if not the bounden necessity of the political state holding as far back as possible from meddling in economic, social and moral affairs; and, conversely, in doing all that is possible in strengthening and broadening the functions of family, neighborhood, and voluntary, cooperative association ... the hallmark of conservative politics has been its greater affection for the private sector, for family and local community, for economy and private property, and for a substantial measure of decentralization in government, one that would respect the corporate rights of the smaller unities of state and society.

That is the balance I admire.

Additionally, I might offer Nisbet's essay on Conservatives and Libertarians: Uneasy Cousins which has been previously disscussed on this forum. If Nisbet can find the common ground, many of us can as well. See my home page for a link to that essay's discussion in The Pursuit of Liberty series we had here back in the days of common purpose.