It turns out that Condorcet's vision of law and politics was distinctly "universalist," imagining all people everywhere seeking the correct answer to questions of law and policy. This universalist vision is central to the Jury Theorem, the most basic condition of which is that each "juror" answer the same question. And it is also essential to the Posner-Sunstein application of the Theorem, which posits that questions of law will often be relevantly similar from country to country. But the Framers' vision, as reflected in many of the Constitution's textual and structural features, was distinctly more localist. As careful analysis of features like bicameralism, federalism, juries, and the amendment mechanism demonstrate, the Constitution favors decision-making mechanisms that harness multiple collective bodies with distinctly varied geographic and institutional perspectives, each answering subtly different questions. In short, despite Condorcet, the Constitution itself ultimately refutes the notion that it should be interpreted by reference to the law of other states.
The emphasis is my own. I venture no opinion on the impact of Rosenkranz's analysis on his topic of choice. But I am intrigued by how this provides a historical root to the importance of the pluralism of perspective in the American political tradition. My fellow travelers in the more post-modern strains of contemporary liberalism have pushed this mantra. Iris Marion Young argued in her book Intersecting Voices that "Normative judgment is best understood as the product of dialogue under conditions of equality and mutual respect. Ideally, the outcome of such dialogue and judgment is just and legitimate only if all the affected perspectives have a voice." Justice demands that those we are affecting get to input the process. But it isn't just an obligation--it also seems likely that hearing from diverse perspectives will lead to better policymaking. One group may have insight where another might be blind.
Traditionally, the analysis by Young and her peers has been seen as a radical break from dominant American political thought--emphasizing the plural over the universal. As Rosenkranz demonstrates, however, this is not entirely accurate. Though the unifying language of "We the People" has come to dominate our historical memory of the founding generation, there was quite a strong emphasis by the founders that recognized the distinctiveness of persons and groups and celebrated what each could bring to the table. John Jay in Federalist #2 buttressed the legitimacy of the Continental Congress by noting how "being convened from different parts of the country, [the delegates] brought with them and communicated to each other a variety of useful information." Madison's work in Federalist #10 made group differences the prime defender of American liberty, hoping that a diverse array of factions would play off each other to insure everyone's rights are protected. The large union was instrumental to insuring that a diverse array of views and interests were represented, while smaller communities were understood to be more segregated and homogeneous.
The smaller the society, the fewer probably will be the distinct parties and interests composing it, the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or even if such a common motive exists, it will be more difficult for all who feel it to discover their won strength, and to act in unison with each other.
The good being pursued here is diversity and plurality. "We the people" is in some ways an outlier. Though we are united under banner, our strength comes from our varied perspectives--that which makes us different. E Pluribus [Voces], Unum.
PS: I apologize for my guess at Latin in advance.