56 N.Y.U. L. Rev. 353 (1981)
Our Perfect Constitution

handle is hein.journals/nylr56 and id is 371 raw text is: OUR PERFECT CONSTITUTION
HENRY P. MONAGHAN*
Projessor Monaghan takes isue with due substance theorists, who rietr the Consti-
tution as protecting rights and values generated by current conceptions of political
morality. In this Article, he examines and criticizes the theories adcanced to jILstify
looking to those current conceptions as an acceptable mode of reasoning about
constitutional meaning. Professor Afonaghan's own clew is that the proper mode of
ascertaining constitutional meaning is one that looks to original intent and prece-
dent, a view that acknowledges the Constitution does not guarantee perfect gorcern-
ment.
Our great and sacred Constitution, serene and inviolable, stretches its beneficent powers over
our land ... like the outstretched arm of God himself... the people of the United States...
ordained and established one Supreme Court- the most rational, considerate. discerning. vera-
cious, impersonal power-the most candid, unaffected. conscientious. Incorruptible
power.... 0 Marvelous Constitutionl Magic Parchment! Transforming word! Mker. Moni.
tor, Guardian of Manldnd!I
Every tribe needs its totem and its fetish, and the Constitution is ours.^
Indeed, Mr. Editor, the great fault of the present times is, in considering the
constitution as perfect.3
THE PERFECTIONIST CULTURE THFME
Some lawyers, many judges, and perhaps most academic com-
mentators view the constitution as authorizing courts to nullif3 the
results of the political process on the basis of general principles of
political morality not derived from the constitutional text or the struc-
ture it creates. The supreme court is plainly committed to such an
endeavor in the sex-marriage-children area, where some fifty written
opinions order these relationships ostensibly in the name of securing
due process and equal protection.4 Indeed, the court seems well on
its way to constitutionalizing the entire subject of family law, which
two short decades ago was bereft of constitutional restraints.5
*Professor of Law, Boston University. B.A., 1955, University of Massaclusetts; LL.B.,
1958, Yale University; LL.M., 1960, Harvard University. 0 1981 by Henry P. Monaghan.
H. Estabrook, Proceedings of the Annual Meeting of the Missouri Bar 278 (1913). quoted
in R. Gabriel, The Course of American Democratic Thought 402 (1940).
* Lerner, Constitution and Court as Symbols, 46 Yale L.J. 1290, 1294 (1937).
* S. Roane, Letter to the Editor of the [Richmond] Enquirer, June 18, 1819, reprinted in C.
Gunther, John Marshall's Defense of McCulloch v. Maryland 130 (1969).
4 The figure is cited without authority for the years 1965 to 1980 in Karst, The Freedom of
Intimate Association, 89 Yale L.J. 624, 625 (1980) [hereinafter Karst, Intimate Association].
5 For an elaborate and approving summary of this development, see Developments in the
Law-The Constitution and the Family, 93 Harv. L. Rev. 1156, 1161-97, 1248-13M3 (19S0).
353

Imaged with the Permission of N.Y.U. Law Review

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