The Schaefer quote is really important and just as difficult a problem to handle. The difficulty here is that the Constitution was clearly intended to be a technical artifact, something we make as a matter of collective consent, but also an object of veneration--in this sense, it bridges the classic "we revere the old we don't make" with the modern " we know what we make". The framers had a tendency,as did Lincoln, to discuss the Const. as worthy of authoritative respect precisely because it embodies certain extra-constitutional moral principles--so much so that many, like Hadley Arkes, think it's essentially impossible to understand in abstraction from them. The difficulty is that the our Const. is originally framed in such a way that invites the transformation of technical legal disputes into grander contests of theoretical principle. Still, Hamilton clearly wants the scope of judiciary to be narrowly wedded to the more technical controversies and goes as far to argue even hyper-technical issues should remain as close as possible to the common sense meanings of terms--this allowed the continued accessibility of these issues to the general populous. Tocqueville too praised our judicial system but always on the premise that it would confine its decisions to highly particular ambiguities and contradictions versus matters of general theoretical determination. If we want judges ot be technicians rather than philosophical technocrats conservatives should reject both the living constitution view and the judges as moralists view as well

Thanks Peter--I think my take-away point on the Nobel is that while conservative outrage was understandable, it's most decorous and civic-spirited to move on. If we hammer away on this, we put our opponents in an impossible position rhetorically--they cannot say out loud what most of them feel in their gut, that the Nobel Committee made a foolish decision, because once Obama decided to accept, he couldn't act as if the Committee's decision was insane, and this becomes an act of politeness Dems have to echo if they don't want the president's stature further harmed by this. So, natural outrage being having been voiced, it's lose-lose as far as civic discourse goes to keep making much of this.

As for the Schaefer quote, he's thinking of John Rawls, about whom he wrote a fine book, Illiberal Justice. For those who would like a less intense (i.e., less chapter and verse) critique of Rawls, I'd recommend a new book called Getting the Left Right, by a McWilliams/Galston influenced pol theorist Spraegens. So far, very promising, the sort of book that makes the best possible case for a more moderate liberalism, a case that demands demoting Sir Rawls.

In the next year or so, I believe, Jim Stoner is going to publish a fine book that generally shows why acceptance of the Constitution's authority, in a broadly originalist manner, is the only real "overlapping consensus" we Americans can rely upon--Stoner has his own terminology/schema for this worked out, this is just a teaser. I think it will show pretty well why the liberals' desired importation of Rawlsian theory into our Constitution would be so hazardous to the basic legitmacy of our political society. It will also, I think, present a real challenge to the good Hadley Arkes, and it will be interesting to see what he says in response to it.