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Chapter 1 Constitutional Fundamentals 19 People differ. As individuals, we differ from each other in matters ranging from the mundane to the significant. Beyond such mundane differences as being right-handed or left-handed, we differ from each other in regard to such naturally based characteristics as our age, sex, sexual orientation , race, and ethnicity and such socially based characteristics as how much and what kind of education we have, the state of our economic and financial condition, where we grew up and live, what kind of occupation we pursue, what leisure activities we choose, and others. Related to these and other differences, we develop our own particular traditions, interests, values, beliefs, and opinions, differences we share with some people and not others, but which are likely to be enduring. Indeed, as James Madison famously said in Federalist 10, “As long as the reason of man continues fallible , and he is at liberty to exercise it, different opinions will be formed.”1 The result is that, looking at almost any society, we see the simultaneous existence of different individuals and groups, and thus different traditions , interests, values, and beliefs, within a territorial unit under a common rule. We are confronted, that is, by the fact of diversity. In the United States we attempt to cope with our differences by living according to the motto E Pluribus Unum, whereby hyphenated Americans—e.g., ItalianAmericans , Irish-Americans, African-Americans, etc.—are and strive to be at the same time simply Americans.2 Additionally, even the seemingly 1 Federalist 10, in Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Clinton Rossiter, with a new introduction and notes by Charles R. Kesler (New York: New American Library, 1961 and 1999), 46. 2 This is not uncontroversial, for “Out of many, one” incorporates a tension that seeks to avoid reducing the many to the one and the one to the many. The former reduction appears when some argue that in practice being “simply American” has meant or even should mean aspiring to a white, Anglo-Saxon, Protestant (WASP) most homogeneous nations elsewhere have their own differences to negotiate. In Germany one should never confuse a Bavarian with a Prussian or a Rhinelander, and in Great Britain one should never, ever call a Welshman or a Scotsman—not to mention an Irishman—an Englishman. Diversity, then, whether understood in regard to physical, sociological , economic, geographic, or intellectual differences, is universal and ubiquitous, but diversity creates a major problem. While there are some spheres of human activity in which individuals may safely pursue their diverse interests as they see fit, there are other areas or issues that affect the entire society and thus cannot be safely left to individual choice and discretion. For example, as we drive down the highway in our car, the decision as to which radio station we listen to, if to any at all, remains in American society with the individual.3 What is not left to individual decision , on the other hand, is the question of on which side of the road we may drive, for our physical and financial well-being requires that we have reasonable grounds to trust that no one will be heading directly at us as we drive down the road and around a blind curve. Thus, some decisions are individual decisions, while other decisions must be social or what we call collective decisions. That is, in some areas of life the individual may be safely left to make his or her own choices, while in other areas of life he or she cannot be left to make his or her own choices—he or she, along with everyone else, must be bound by the same rule. Different societies draw this line in different places, and we normally consider those who attempt to maximize the domain of individual choice to be the freest. The major problem, however, is that the combination of diversity and the need for certain collective decisions creates conflict. If people cannot be left to choose as they see fit, if one rule must be chosen to be binding on everyone regardless of individual values and preferences to the contrary , then which rule—whose values and preferences—do we choose? Conflict arises because different rules affect people in different ways— some people are benefited and advantaged, and some are burdened and disadvantaged. In the United States, to continue our traffic example, the rules of the road mandate that we drive our cars...

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