Our practices for determining issues of public morality are deeply flawed. We rely too heavily on the Supreme Court of the United States to determine them for us. We give too much responsibility to the Court, and too little to other institutions; we evade our own responsibility as citizens in a democratic polity. The problem is not that too many issues are "constitutionalized," for many of our most important public moral issues are quite properly treated as constitutional questions. The problem, rather, is that we assume that only the Court is authorized to decide, or is capable of deciding, constitutional questions. These are controversial assertions. In this paper, I shall explain what I mean by them, and at least begin to justify them. I believe that citizen participation in constitutional discourse and decision-making is desirable for several reasons. First, it can bring to bear on the decision-making process relevant perspectives and information that would otherwise be excluded. Second, it can educate the public about constitutional issues. Third, participation in the basic political decision of one's society is an intrinsic good.


The Thirty-First Cleveland-Marshall Fund Lecture