![handle is hein.journals/forharoc124 and id is 1 raw text is: THE POLITICAL ANIMAL AND THE ETHICS OF
CONSTITUTIONAL COMMITMENT
Josh ChaI tz
Nothing appears more surprizing to those, who consider human
affairs with a philosophical eye, David Hume wrote in 1741, than the
easiness with which the many are governed by the few; and the impli-
cit submission, with which men resign their own sentiments and pas-
sions to those of their rulers.' Hume's explanation, unsurprisingly,2 is
that the governors have nothing to support them but opinion....
[A]nd this maxim extends to the most despotic and military govern-
ments, as well as to the most free and most popular.3 For Hume, opi-
nion and opinion alone explains why a majority would submit to being
ruled by anything other than the immediate fulfillment of its every
desire.
It is no slight to the great Scot to note that we still share his puz-
zlement as to why we accept government structures even when we dis-
like the substantive outcomes they produce. Professor Daryl Levinson,
in his fascinating new Article,4 takes up a version of this quandary and
advances the discussion impressively. In his formulation, the question
is why politically empowered majorities would choose to comply with
legal limitations on what they can accomplish politically.5 Levinson
notes that James Madison clearly believed that constitutional structure
would prove more durable than constitutional rights and therefore
* Assistant Professor of Law, Cornell Law School. Thanks to Will Baude, Aziz Rana, Cathe-
rine Roach, Steve Sachs, and Justin Zaremby for helpful and thought-provoking comments on
earlier drafts. Any remaining errors or infelicities are, of course, my own.
1 DAVID HUME, Of the First Principles of Government, in ESSAYS: MORAL, POLITICAL,
AND LITERARY 32, 32 (Eugene F. Miller ed., Liberty Fund 1987) (1741).
2 This explanation is unsurprising because of the role that habit and opinion famously play in
Hume's ethical and epistemological thought. See DAVID HUME, A TREATISE OF HUMAN NA-
TURE 455-76 (P.H. Nidditch & L.A. Selby-Bigge eds., Oxford Univ. Press 2d ed. 1978) (1739-
1740) (arguing that moral principles are discoverable, not from reason, but from sentiment); DA
VID HUME, An Enquiry Concerning Human Understanding, in ENQUIRIES CONCERNING
HUMAN UNDERSTANDING AND CONCERNING THE PRINCIPLES OF MORALS 5, 43-45 (P.H.
Nidditch & L.A. Selby-Bigge eds., Oxford Univ. Press 3d ed. 1975) (1748) (arguing that habits or
customs of thought underlie all a posteriori knowledge); see also Leslie Green, Because Everyone
Thinks So': Hume on Authority and Common Opinion i (Univ. of Oxford Legal Research Paper
Series, Paper No. 59/2010, 2010), available at http://ssrn.com/abstract=1697992 (Hume thinks
that law is fundamentally a matter of social fact and that obedience to law is an artificial, because
convention-dependent, virtue.).
3 HUME, supra note i, at 32.
4 Daryl Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commit-
ment, 124 HARv L. REV. 657 (2011).
5 Id. at 659-60.
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