One Possibility for Liberal Discourse: The Evolution of New Power-Based Concepts of Constitutional Government

If liberal scholars tuen from individual rights consciousness, how will traditional liberal values--that of anti-discrimination of privacy, for example--be protected? Such protection may have less to do with a focus on individual rights than it has to do with the acceptable scope of governmental power as embodied in the majoritarian dictates of the Constitution. That is, by recognizing more exacting standards on the governmental power to administer societal affairs, the interests traditionally labelled as 'rights' will be guarded. ¹⁸⁵

A new 'power-based' approach, unlike its nineteenth-century ancestor, ¹⁸⁶ might have several advantages. First, without invoking the language and categorical analysis of earlier constitutional theory, liberal legal scholars might create new constructs suitable to the contours of the approach. Second, 'power-based' theory is more easily reconciled with democratic principles: restraints on governmental administration are imposed in the name of majoritarian limits on power. Third, it has the potential to broaden the spectrum of socioeconomic interests that are 'fundamental' to the majority, and that must accordingly be secured by affirmative government.¹⁸⁷ Finally, and perhaps most importantly, because it is not grounded in the authority of social atomism, it avoids the analytical pitfalls of individual rights consciousness.¹⁸⁸