Whereas, on the unconstrained vision, the desire is to reserve power for those with requisite virtue and
wisdom, and thus it spans the political scale from totalitarianism to anarchic individualism on a common
conviction that man, individually or collectively, possesses an innate capacity for "planning and executing
social decisions for the common good," there exists no such capability for the constrained vision for either
masses or elites. Sincerity, knowledge or reason are not crucial, but rather, "the incentives conveyed to
them through systemic processes which force[s] prudent trade-offs."(43)

     There are values and tradition, markets and families, republican virtue and civic religion as "evolved
systemic processes" upon which those of the constrained vision "look for the preservation and
advancement of human life."(44)
	

"To those with the constrained vision, the special wisdom or virtue of moral-
	intellectual exemplars is far less important than the mass experience of the 
	generations (embodied in traditional values) and the current expressions
	and economic preferences of the many (embodied in prices). [While] In the 
	unconstrained vision, the ordinary individual is to be responsive to the message 
	of moral-intellectual pioneers ... "(45)

     It might be suggested that, hence, civil religion is necessarily to be eroded to be replaced by a new
covenant. The unconstrained vision would have the 'angry public' seek remedy by 'appeal to its political
government' so that "the market gods are increasingly brought within control of humanely exercised
power."(46) This is as true in the underdeveloped sector as it is in the advanced:
	"It is not the masses themselves but 'those who think and act on their behalf '
	who must direct economic development,"(47)
though from the constrained vision this is condescension that classifies groups as helpless victims who
cannot know either what they want or what is good for them, denying them not only identity and character
but responsibility.

     For Sowell, this contempt for people is also expressed in Max Weber (and on him, Galbraith) in the
definition of power as "the possibility of imposing one's will on the behavior of other people:"(48)

	"To those with the constrained vision, to deal with the problems of an economic
	process, in which power is at most attenuated, by increasing and concentrating
	political power that is very real is to reduce rather than increase human freedom.
	But to those who with the unconstrained vision, with a different conception of
	power, the exercise of political power 'is pale in contrast with that exercised by
	concentrated and organized property interests.'"(49)
                                                                                                                                                                               
     Yet, it is the importance of property rights as 'zones of immunity from public authority' in the
constrained concept, through the traditions running from Smith to Blackstone and on, which benefits are
seen as social. They allow for greater efficiency in the economic process, and the diffused power of the
political process taken with taken with that, provide justification, for it is the entire population which is
the beneficiary.(50) Sowell makes an identical case for free speech.

     The Constitutional protection of speech, association, and property are therefore held in question by the
unconstrained view of such as Tribe and Dworkin for whom "substance-denying" in the courts condones
injustice:

	"Judges should 'question the trade-offs arrived at by the political branches'
	of government rather than be satisfied if 'due process' is observed within the
	boundaries of legislative and executive discretion. It is not enough that explicit
	constitutional rules are followed; implicit constitutional 'values' are to be discerned
	and applied by judges to the substance of decisions made by others,"(51)

such that, on Dworkin, there has to be "fusion of constitutional law and moral theory." For Blackstone of
the constrained vision, this is not possible for reason is imperfect, prone to error and corruption and, on
that account, the law has been established and cannot be 'discovered.'(52) It cannot be the deliberate work
of outstanding individuals "alone as it was for Condercet."(53) But,

	"The unconstrained vision has continued to emphasize the deliberate creation
	of law, by legislators and judges, in order to produce desired social results."(54)

     For Tribe, the Constitution is not enough. Its interpretation must take substantive results into account,
while for Hayek, 'distributive justice' was inherently 'irreconcilable with the law,' as that is the barrier
between freedom and tyranny. This becomes clear with Rawls, for whom 'victimization' on this requires
expansive governmental intervention to deal with it.(55) It would seem to allude the unconstrained mind
that the very effort sought will undermine the economic basis in capital accumulation, explored more fully
here elsewhere, which is the real remedy. Instead, there is a moral imperative for "the extension of
governmental power to domains of interest, such as those protected by property rights."(56) The
categorical imperative as developed here is, however, thereby defeated, as the constrained vision holds
that man  is incapable of such action for others.

     Sowell argues in opposition to such notions of micro-management by government:

	"In the constrained vision, man is capable of making long-run and general
	assessment of social processes, comparing constitutional government with
	alternative governments or competitive economies with politically divided
	economies, for example. The mode of assessment is experimental, and the
	revealed preference of the many -- especially when they 'vote with their feet'
	-- is from this perspective more persuasive than the articulation of the few.
	By contrast, the unconstrained vision implicitly sees man as capable of
	judging more immediately, and more minutely, when it offers discrete 
	solutions to numerous social problems seriatim."(57)

     For those of the constrained persuasion, the processes are too complex and the social results too
difficult to manage control over to so prescribe and circumscribe. It is beyond the capability of any set of
decision-makers "to marshal the requisite knowledge, and dangerous to concentrate sufficient power, to
carry out their decisions, even if it were possible."(58) That, of course, does not provide any basis for any
conclusion that the unconstrained vision is flawed and the constrained correct. They are more
appropriately viewed as a continuum anyway, upon which any system falls somewhere. And on that
continuum, Malthus lies to the constrained end while Shelley, the unconstrained (amazingly if
interestingly). Marx, insists Sowell, is not only somewhere in between, but all over,(59) while collectivism
in all of its myriad manifestations lies to the unconstrained side; so, too, will the objectivism of Ayn Rand.
Most importantly, however, the American constitutional regime and tradition, as well as its requisite
orders of republican virtue and civil religion are unquestionably, even definitively, well to the constrained
vision side. That does not mean that man is, in that order, inherently fallen and evil or incapable of free
will choice contributions to human development, but that such are the characteristics  of individual free
men and that the guarantees of the regime are directed that end.

     The 'formal pragmatics' of  'discourse ethics' in the 'communicative rationality' of Habermas poses
questions as to the validity of Sowell's analysis, if not the faith taken to be at least hegemonic in American
civil religion here. 'Discursive will formation' through 'need interpretation' is fundamentally
intersubjective. Lisa Zanetti has it that:

	"Valid norms [can a 'norm' be other than valid] must rest on consensually defined
	ends which are identified as genuine common interests and which express a common
	will. Personal experience and interests alone are not sufficient ..."(1995:3)


     But as such, normative validity claims rest on a collective concept of generalizable judgment, and in
seeking the ends of  'mutuality,' rejects self-interest. If this 'offers' a coercion-free society as Braaten
(1981) and Kay and McCarthy (1994) suggest, the shift entailed from individual to community is certainly
not going to generate it. But it is just this which contributes to the 'legitimation crisis' of modern society
growing out of the tension between the "distinct basis for thought, action, and organization" of the
'lifeworld' versus the 'system.' While the first remains functioning "on the norms of communicative
rationality in which consensus is the aim," the second arises out of "the demands of material production,"
and this is disruptive of the former (Habermas 1984, Braaten 1991, Zanetti 1995), resulting in a
decoupling of lifeworld and system. Not only does this rift mean that persons are less prepared by the
lifeworld to function within the system, thus leading to system disfunction, but it has led to a 'colonization
of the lifeworld' where it invades the domain and seeks to substitute itself and take over functions inherent
to the lifeworld. It is not difficult to see parallels in this described phenomenon  between Hayek, von
Mises, and Sowell with Habermas. Both sets of analysis seem to be describing what might be termed
encroachment of the burgeoning public sector complex. What both see bears all the baggage of collectivist 

     If Habermas can be faulted, as he often is, as diagnostic but not prescriptive, some of those who have
taken the ball to run with it draw heavily on the primeval soup of the collectivist swamp, whether or not
such may be tied to Habermas, for whom 'democracy' has become little more than a choice between
alternative administrations,

	"In a system designed to minimize citizen participation to a public arena reduced 
	to the tiny area required for an individual act of voting -- now done in a closet --
	once every two years ..." (Matthews 1995:223)

     Matthews sets the blame for this 'fragmented society' of hyperliberalism and 'hopeless pluralism'
definitively with the Madisonian system. If the 'reconstructive democratic theory' of Dryzek (1993) would
structure theory out of enhanced participation in a gradualist scheme where agency planning can
overcome the dilemna, Denhardt (1981a) would go further, with public administration moving from mere
orientation to technological-instrumental concerns of  'objective policy analysis' to return to "a value-laden
conception of  'public interest'" (Zanetti 1995:17) Forester (1981) wants 'public planners' to go even
further:
	" ... well poised to act as agents for social change in that they are situated to merge
	pragmatism with vision ... He rejects ... 'satisficing' and incrementalism ... "(Zanetti 1995:17)
in his advocacy of planning as a public function which can
	" ... assert a normative foundation in an effort toward more substantive democracy."
	(Zanetti 1995:17)
                                                                                                                                                                               
     Stivers (1987:309) not only betrays the bankruptcy of political economy which permeates the approach,
but actually  critiques the debate on health care for its being "dominated by the language of economics."
But the assessment that such economic concerns assume that "'public interest' is nonrational because it is
nonquantifiable," and that it "cannot address -- and in fact specifically eschews -- consideration of general
interests that are not aggregations of  individual preferences" (Zanetti 1995:18) clearly demonstrates that
apparent rejection of reductionism does not necessarily indicate success in overcoming it.

     It simply is not the case that communicative rationality in its rejection of self-interest for the professed
"belief [of Habermas] that individuals seek mutual understanding" is the foundation for social bond and a
reinvigorated public sphere. Social planning is in fact the very crux of the problem of the legitimation
crisis out of the rift of worlds which is Habermas' diagnosis.

     Zanetti may reveal another problem with the 'language' paradigm itself, that what may appear to be
mutual exclusivity of categories is anything but that, and, rather there is a high level of overlapping
commensurability among the various 'tongues.' Even though various commentators have put varied spins
on each of the languages of Biblical thought, republicanism, liberalism, conservatism, and radicalism, it
may be that the common denominator or at least common thread running through each can arguably be
capitalism, with its ancillary emphasis on self-interest. This may not satisfy each of the criterion of
validity claims described by Habermas, and especially his exclusivity concerns, but it is liberal in its
operational enhancement of equality, republican in its methodology of community formulation through
market exchange, biblical in its dedication to wealth creation, conservative in its orientation to natural
law, and radical in its commitment to progress and development. Importantly, this very essence is the
substance of the civil faith, as well. Where they diverge from such commonality is only in the spin placed
on each by advocacy of what amount to academic 'spin doctors' of one or other of these languages. Even
Abbott (1990) strikes something of a similar theme in the identification, albeit principally with liberalism,
of an individualism he suggests connects varied aspects of discourse. It is, as well, reflected in the
understanding promulgated by Adam Smith of  'concord,' not union or anything else. Even the alleged
perception of differences in definition, such as Abbott ascribes to liberalism regarding the individual, is
transcended by this commensurability. As a result, the liberal fixation on maximized individual liberty is
mitigated by the actuality of the reliance of such on material bases for liberty. And where Burke may
challenge this individualism, his contention that:

	" ... political institutions form a vast and complicated system of prescriptive rights 
	and customary observances, [and] these practices grow out of the past and adapt
	themselves to the present with no break in continuity, and that the tradition of the
	constitution and of society at large ought to be the object of a reverence akin to
	religion, because it forms the repository of a collective intelligence and civilization."
	(Sabine and Thorson 1973:558)



portrays society itself as a contract, reverently observed as "a partnership in all science ... in all art ... in
every virtue ... in all perfection" that extends across generations so that "Each contract of each particular
state is but a clause in the great primeval contract of eternal society"(Burke, in Sabine and Thorson,
1973:565) as a 'spiritual dimension'(Zanetti 1995:18). There is in Habermas a desire "to merge individual
autonomy with the concern for the collective whole"(Zanetti 1995:18), but it is an artificial one, the
impact of which is to substitute planning for the concord of Adam Smith's system.

     The intersubjectivity concern creates a contradiction in Habermas which collective rationality cannot
resolve. Illustrative of this paradox is Goldford's (1995) attempt to build on Habermas' communication
analysis a challenge, perhaps fundamentally out of Llewelyn which articulate the position of Tribe, et al in
legal  discussion. Goldford has written what must be taken to have been intended as a troublesome
indictment of original intent, but it is actually at most merely quarrelsome. His contention as to the
existence of an unwritten constitution which stands behind the written one as representative of his
argument is acceptable within certain limitations. However, these are not limits which his theory
subscribes to. His paper, presented at the MWPSA Conference in Chicago in 1995 is little else than
Orwellian double-speak. It may even surpass that. Can he, too, convince us that snow is black? The
paradox of his interpretation is that language can come to mean its opposite  and still be 'constitutional.'
The constitution as 'constitutive' is an important concept, but there is a prescribed method for seeking
alteration in the spirit if not the letter of the Constitution where that is appropriate or desired --
amendment. It is something quite different to ascribe a capacity to change the constitution effectively by
stealth when it is not possible to alter it within its operational parameters. This is a far cry from
suggesting that the text means whatever we want it to mean, or that it is meaningless if we choose to say
so. Goldford has 'reduced' the language of the Framers to meaninglessness in his linguistic calestetics.
This view runs to a central issue, a distinction between 'liberalism' and 'republican', the former
recognizing no barriers to majoritarianism even to the extent of violation of basic elements of the
'individual' (property, contract, etc.) -- so there are inherent contradictions or flaws to liberalism which
have at least the potential of being 'seeds of its own destruction,' it being theoretically possible for a
majority to decide to abrogate fundamental rights.

     Under such interpretation, Jim Crow must be held to have been 'good law.' But what Goldford poses
not only circumscribes the Constitution, but as well the entirety of compact and contract, and additionally
complicates the language problem, as we are left in Babel. Normative validity is lost on account of such
discourse situational ethics. This 'chicken and egg' argument runs to the attempt to build a case for the
unilateral reformation of contract and therefore strikes deep at the heart and soul substance of
constitutional order. And he does it shamelessly, tracing the controversy to the event of the Brown case
forty years ago, a not so subtle branding of original intent as racialist in its character. He has reiterated
much of what has been referenced here in regard to social construction, however.

     There are, of course, extra-constitutionalities, but neither are they 'frozen' or forced upon any
generation by the past. To the extent that 'ongoing social practices' constitute a news reality at odds with
the  Constitution, it can be reconstituted. Rather than being a function of the inadequacies of positivist
theory as opposed to interpretist thought, instead of ironically becoming "decreasingly binding with the
passage of each day,"(Goldford 1995:29) it provides for the resolution of this legitimation crisis. But
Goldford, too, reveals his objective of agency planning as he ties his analysis to that of Ronald
Dworkin(1986). A rudimentary postulation is overlooked, however, which resolves even the Habermas
paradox. Individual interest produces and fulfills mutuality while attempts to restrain interest undermine
mutuality. The most efficient means of securing mutuality is through individual efficacy, while, indeed,
Zanetti's 'common will' is clearly not the 'general will.'

     It really should hardly bear repeating how man is viewed in the philosophical system of Plato, but it is
often ascribed an 'elitism' which comes from his having been misconstrued if not misrepresented, and is
an extremely superficial interpretation of his perspective. There is the parable of the cave, of course, in
which men are situated watching merely the shadows of the real world outside which are cast on the wall
before them. While one might be tempted to take this to have been a premonition of television in
contemporary society, a key component of the larger expression of humanity contained therein rests on the
prospect that we may exercise our free will and escape the trap. Otherwise, the human species is described
as situated as bronze, silver, or golden souls, but again, it is will and reason by which we can ourselves
determine at what level we operate. There is also the analogy of human personality as a chariot pulled by
two horses, passion and conscience. The chariot is controlled by reason which mediates the powers which
drive us, ideally in a balance by which we steer our way through life. Although the Platonic vision of man
can hardly be said to be exceptionally enlightened, at least in the broadest general sense, the prospect for
the potential of man to freely determine his course very much does bode a degree of optimism for our
species. It plots out what might be seen as a sort of middle way between a consideration of man as fallen
and corrupted beyond help and a naive perception of man as an inherently noble character.  As in John,
human beings are seen as electing whether to be the 'beast' of the 'child of God' through the exercise of
reason or logos, we are neither unalterably one or the other, but choose which nature is to prevail. The
dichotomy thus posed is an issue which runs throughout the discourse of philosophy, but the 


Platonic characteristic of choice on free will and reason cohere fundamentally with the spirit which
permeated the structuring of our constitutional regime. At the opposite end of the spectrum, however, is
the casting of man as fallen and corrupted. In Freud, we find that rather pessimistic image, but posed in a
methodology which bears some striking similarities  otherwise to Plato's chariot. The nature of man is
constituted in the tension among three rudimentary aspects, the ego, id, and super ego, where the real
conflict is between id and super ego mediated by the reasoning self of the ego. Id is basically our meaner
base animal nature while the system of societally constructed and imposed constraints of the super ego is
juxtaposed over and against it. Much that is problematic in man arises from the frustration which arises as
a result of the latter's constraints imposed upon the former. (One might be tempted to almost read a
Freudian analysis into the American institutional structure, with perhaps a Congressional id, Presidential
ego, and Supreme Court super ego, but that reading would, of course, be fraught with peril even could it
be construed as possessing a grain of validity). The Freudian perspective, then, is one in which the
individual must be constrained, and for which the variety of such constraints includes both institution of
governance and religion.(By this should not be inferred the same 'constrained' type posed by Sowell, for
he has not placed Freud specifically in his system and this exercise will not purport to speak for him).

     Civilization for Freud encompasses all those means by which the human species raises itself "above its
animal status" and includes both acquisition of the means of control over the forces of nature toward the
"satisfaction of human needs" through wealth extraction, and the regulatory devices necessary "to adjust
the relations of man" ... and "especially the distribution of the available wealth"(THE FUTURE OF AN
ILLUSION)   (60). It is, therefore, something "imposed" on people and, as a result of this, "every
individual is virtually an enemy of civilization" even as it is supposed to be in their interest:

	" ... every civilization must be built up on coercion and renunciation of instinct."(61)

without which the "lazy and unintelligent" masses would not perform the work upon which "the existence
of civilization depends." Such coercion is required to overcome the anti-social tendencies that prevail in
any society, but such compulsion provokes the opposition of those it must constrain.  One of the mental
advances which distinguishes the contemporary human mind from that of earlier, primitive existence is
that

	"external coercion gradually becomes internalized; for a special mental agency,
	man's super-ego, takes it over and includes it among its commandments."(62)


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