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7. CONSTITUTIONAL VALUES AND POLITICAL GOALS A consideration of the relevance of constitutional values to political goals will be a two-pronged exercise---concerned on the one hand with the policy implications of constitutional values and on the other with the role of constitutional values in judicial decision-making. Both facets are highly speculative . The character of judicial decision-making varies enormously from judge to judge, court to court, and time to time, and the amorphous nature of constitutional values further complicates matters. Despite the ambiguity some inchoate patterns do emerge, providing a useful starting point for an investigation of the policy opportunities associated with the politics of rights. Judges do not regularly take independent stands on matters having to do with goals for the polity, but they are from time to time to be found out on the end of public policy limbs. There is no reliable way to forecast the occasions of judicial independence, since there are such great variations among judges and according to circumstances. It is, however, fair to say that courts are unlikely to take the lead on behalf of goals that are not firmly rooted in constitutional values, although they may be fully prepared to discount or disregard these standards when they are swimming with the political tide. Lacking a persuasive constitutional rationale, however, the chances for coaxing most judges into the front lines would seem to be rather slim. Constitutional values, then, will usually define the boundaries of judicial independence97 THE POLITICS OF RIGHTS whether on behalf of new goals, for extension of accepted goals to new groups, or in defense of old goals that are under pressure elsewhere in the system. Constitutional values are the patterns of preferences and practice that are rooted in the U.S. Constitution-values which have already been identified with the myth of rights. Insofar as judges take these values seriously, their response to policy problems will be influenced in three significant ways. Policy directions will reflect the liberal-capitalist bias of the Constitution. The pace of policy change will take on incremental tempos. And, finally, the character of judicial independence will be restricted by legalforms. Just as the meaning of the Constitution can never be established indisputably, the policy implications of constitutional values will always remain a matter of controversy. The wording of the Constitution supplies evidence of the values and visions ofits framers, elaborated in commentaries like the Federalist, but visions and values are too nebulous to be captured and frozen in written provisions. The brevity of the Constitution and the social changes that have occurred since it was written lend a further note of ambiguity. Nonetheless, on the general issues of policy direction, tempo, and form, some patterns do emerge. These patterns provide a basis for significantly scaling down the message of unqualified constitutional beneficence conveyed by the myth of rights. LIBERAL-CAPITALIST DIRECTIONS The United States Constitution is based loosely on the familiar premise that the government is best which governs least. Government intervention that restricts personal choice or burdens private property is to be the exception, and all such interventions are subjected to standards designed to protect the citizenry against abuse of power by the government . These standards are found principally in the Bill of CONSTITUTIONAL VALUES AND POLITICAL GOALS 99 Rights, but they are contained in other provisions of the Constitution as well. Taken together, they seem to add up to two essential guarantees beyond the basic commitment to minimum intervention. Intrusions into social and economic matters shall be both reasonable and equitable. Intrusions shall be reasonable in the sense that they are the product of careful deliberation, which is supposed to guard against arbitrary action by promoting consideration of the relevant facts and attention to the relationship between means and ends. Intrusions are to be equitable in that everyone is supposed to be treated equally before the law. As will become apparent, this question of equality before the law is much more complicated than may appear at first glance. While difficult to apply, it remains nonetheless an important constitutional standard. In sum, constitutional values imply minimum government intervention subjected to the standards of due process and equal protection of the laws. There was a time when the Constitution could reasonably have been thought of as a charter for change, but that time is long past. The goals expressed and implied by the Constitution -a federal system, a national economy, a unified posture in foreign affairs, a viable military establishment-have...

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