Book Review:
Arthur S. Miller, Myth and Reality in American Constitutionalism (reviewing Don Price's America's Unwritten Constitution: Science, Religion, and Political Responsibility and Herbert McClosky and Alda Brill's Dimensions of Tolerance: What Americans Believe About Civil Liberties), 63 Texas L. Rev. 181 (1984).
 

Abstract:
This is nominally a book review of America’s Unwritten Constitution: Science, Religion, and Political Responsibility by Don Price and Dimensions of Tolerance: What Americans Believe About Civil Liberties by Herbert McClosky and Alida Brill. However, Miller readily admits that his primary goal is not to assess these works. Rather, he uses the ideas in these works as a jumping off point to outline in some detail his own analysis of America’s constitutional system of government.

Miller compares the jurisprudence confidentialle (a secret account of the real workings of the constitutional order that is known only to a few elite practitioners) with the jurisprudence publique (a less adequate account that is widely disseminated and studied) and considers the ways in which former illustrates the deficiencies of the latter. Specifically, he argues that, while the jurisprudence publique declares that the Constitution limits the government’s power, this can be seen to be incorrect from the perspective of the jurisprudence confidentiale. He further argues that jurisprudence confidentiale demonstrates the essentially illusory character of our notions of representative government, separation of powers, governmental accountability, the division between private and public action, and the notion that Americans are tolerant and freedom loving.

He concludes that the Constitution should not be understood to restrict government power, but to provide some sort of contribution to the debate over what government ought to do.