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Harvard Law Review Forum

The Political Animal and the Ethics of Constitutional Commitment

Responding to Daryl Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657 (2011)

In his article Parchment and Politics: The Positive Puzzle of Constitutional Commitment, Professor Daryl J. Levinson identifies a variety of public choice mechanisms that lead politically empowered groups to accept constitutional limitations on their political power. In this response, Professor Josh Chafetz argues that Levinson overlooks another set of mechanisms, ones which work not at the level of material interests but rather at the level of political morality. Focusing on an Aristotelian account of political morality—an account that was influential among the Framers of the U.S. Constitution and that remains influential today — Chafetz suggests that at least some of our constitutional commitment can be explained in terms of a perceived moral obligation to be ruled by the communal determination of the public good. In other words, Chafetz argues, Levinson’s otherwise compelling account overlooks the importance of an ethics of constitutional commitment.