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PARTISAN REVIEW
alism ," with its notions of natural rights. Ronald Dworkin , with his
emphasis on "taking rights seriously ," is very much within this tradi–
tion. From this perspective, however, the function of documents
such as written constitutions is to ratify a
pre-existing
understanding of
the rights held by free-born men and women. So, Dworkin's ulti–
mate belief in a social order characterized by a shared system of
political values leads him to minimize constraints upon judges alleg–
edly imposed by the fixed text of a written constitution . And some of
Marshall's decisions , such as his citation of natural justice in the
1810 case
Fletcher versus Peck,
involving the contract clause of the
Constitution, support such a view.
But another aspect of the American political tradition is the
deep Hobbesian fear of social chaos. This perspective leads to a nar–
row construction of written constitutions. The chaos of the state of
nature, characterized by the absence of any significant shared
norms, where every person defines "justice" in idiosyncratic and
self-serving ways, is ended only by the agreement to terms whose
compliance is promised by the contracting parties. Rather than a
ratification of implicit norms, a written constitution quite literally
"constitutes" the norms . These parties are not, however , naive
enough to think that voluntary compliance will always be forthcom–
ing. Thus they agree to set up a powerful state that can coerce un–
willing individuals to keep to their promises .
In a Hobbesian world, the terms of the actual contract are far
more important than in the benign Lockean one, for there is no re–
course available to a background of shared values which enables the
state legitimately to go beyond explicit contractual grants . This view
was powerfully articulated in a 1798 opinion by Justice Iredell op–
posing any reliance on norms of natural justice as a source of con–
stitutional doctrine. He argued that those alleged norms "are
regulated by no fixed standard : the ablest and the purest men have
differed upon the subject."
In the background of the turn toward interpretation is the cen–
trality of the social contract metaphor in American thought. A con–
tract demands interpretation, and it is this ubiquity of interpretation
- and concern about the "accuracy" of interpretation - that provokes
the anxiety that the idea of a contract was meant to still. Yet there
lurks as well the specter of Friedrich Nietzsche . "Is meaning not
necessarily relative meaning and perspective?" he asked . And is not
"all meaning . . . [the] will to power"? Thus any such discussion
