Response or Comment
Professor Hoffheimer has provided us with a striking picture of two important strands of our constitutional heritage. The first, which he labels “Augustan constitutionalism,” descended from classical political thought and the English constitution. Its focus is on the governmental powers that it legitimates, and its themes relate to the forms of government; in the American context, this means that its focus is on separation of powers, checks and balances, and (in general) the problem of organizing and dividing government authority. The second, which he calls the “natural rights tradition,” roots government's legitimacy--and indeed its origin and purpose--in the protection of individual rights that citizens possess by nature and bring to the social compact.
In analyzing the significance of these separable strands of constitutional thought for understanding the historic Constitution, as well as modern divisions in constitutional theory, Professor Hoffheimer's paper (and its more complete counterpart which includes careful documentation) ranges across a number of themes and issues. It touches on the grounding of the authority of constitutional text, on questions of continuity and change in our constitutional text and practice, and on the vexing questions presented by the task of interpreting authoritative constitutional text. It also includes fascinating and subtle analyses of some noteworthy historical (as well as literary) events, including the implicit dialogue on the reasons (if any) for celebrating the Constitution's bicentennial which has been engaged by (among others) two modern High Priests of our civil religion, Justices Marshall and Scalia. The author offers some (mainly contrasting) reactions to the connections between the Augustan and natural rights traditions.
4 S. Cal. Interdisc. L.J. 693 (1995).
McAffee, Thomas B., "Comment, The Augustan Constitution and Our Natural Rights Tradition: Is There a Conflict?" (1995). Scholarly Works. 539.