SELF-GOVERNANCE ISN'T SUPPOSED TO BE EASY:

Alito's draft stressed that abortion is "a profound moral issue." He recognizes that he is fighting against an instinct in American politics that has had the republic by the throat for at least the last century. This is the idea that if an issue is morally significant enough, it is necessarily a constitutional one, to be decided on the basis of this or that "fundamental right" that just must be somewhere in the Constitution.

Though the United States was conceived in a struggle for local, republican self-government, we have come to view our Constitution as nothing less than a universal arbitrator and guarantor of political morality--a document that does not simply reflect particular moral commitments of its authors and ratifiers, but embodies moral principles to be applied as circumstances require. We look for constitutional meaning in "majestic generalities" seen as wild cards that can be used to encode whatever moral principle is needed into law.

Of course, the content of that political morality is a matter of some debate. This moral reading of the Constitution has its advocates on the left and the right. The former see individual autonomy in the document's penumbras, the latter sometimes see natural law, natural rights, or (more recently) generic authorizations to promote the common good. Those, like Alito, who would defer to the people's legislatures are, to the left, little Hitlers and, to the right, Stephen Douglas.

But what really underlies all these tendencies is the sense that the people cannot be trusted on the really important issues, especially if it is likely that they will settle these issues differently in their different states. Let them decide on transportation funding, on regulating dog food, or on the height of buildings in their city. On such relatively uncontroversial questions, wrong answers can be tolerated, and difference of opinion managed. But the answer to any question of great moral weight must be discovered once for all in the Constitution and handed down to a public that must be ruled.

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