We appreciate Dan Carpenter's thoughtful assessment of our book and are eager to respond to his reflections about the political theory of the republic of statutes. He is right that we did not discuss some highly entrenched statutory schemes that might well deserve small-c constitutional status as superstatutes. Although we do treat the Defense of Marriage Act as a superstatute in our chapter on the antihomosexual constitution and its disentrenchment, we might have included a chapter on the Food, Drug and Cosmetics Act of 1938 (along with the many subsequent amendments that helped shape the drug enforcement regime we have today) if we had as many original things to say about the Food and Drug Administration's (FDA's) administrative constitutionalism as Carpenter did in his book. It would have been a big chapter, too.

Because of the plethora of superstatutes, we had to be selective. As an introduction to the concept of the republic of statutes, our focus was on areas of statutory law where the small-c constitution could be understood as doing the kind of thing that constitutional scholars ascribe to the Large-C Constitution. Indeed, our agenda was to emphasize areas where statutes protect rights and liberties more broadly than the Supreme Court has been willing to tease out of the Large-C Constitution—areas such as discrimination because of pregnancy and sexual orientation, voting rights and electoral districts, and social safety net-rights. While scholars and judges may be correct to say that the Large-C Constitution does not ensure positive liberties (even though the Constitution does require the state to provide ample procedural rights to legal and political process) and affirmative rights, statutes and administrations routinely do so more expansively, even if imperfectly. Our argument is that the small-c constitution, outlined as we do in the book, is fundamentally important for advancing the affirmative, protective agenda for governance that Hobbes and Locke argued grounded consent to the coercive state.

Does the small-c constitution create the perfect polity? Of course not, and so we agree with critiques of Social Security's early exclusions (such as agricultural and domestic workers). At various points in Chapter 4, on Social Security, we note, but also bracket, those criticisms. Carpenter may have understood our study as normative in the sense of endorsing each superstatute we describe; that was not our project. Indeed, several of our chapters—those that describe the constitution of the family throughout most of our history and the antihomosexual constitution—describe normatively unattractive statutory regimes. And the chapters on the monetary and national-defense constitutions are hardly apologies for the way those systems have worked to recognize and protect rights of various kinds. The point is, our purpose is descriptive of each small-c constitutional system. Still, we think the capacity to develop superstatutes is on the whole a good thing, or at least better than obvious alternatives. Why?

To begin with, the American Constitution is virtually impossible to amend, so that most Large-C Constitutional change occurs through judicial interpretation. While we agree that Constitutionalism requires judicial review to protect weak or unpopular minorities from the majority, judges are not able or disposed to recognize many fundamental rights that are important to modern America. Many affirmative rights must be created politically and administratively or not at all —which means that they will be subject to the limitations of politics and practical administration. (By the way, judicially recognized Constitutional rights are subject to the same limitations, as the desegregation cases have taught us.) It is important to decide together, democratically, what rights need protection and how those protections will work. In a democracy, deliberation is going to be political, messy, and often unequal, but we argue that this is the way rights are advanced and that advancement through superstatutes and administrative constitutionalism is a better system than advancement through judicial recognition alone.

Our argument is that American democracy encompasses a complex ideal of democratic deliberation, one that contains liberal as well as republican aspects. America's republican commitments demand that we pursue public goods together, often requiring sacrifice (in blood or money) from each of us. Our liberal commitments, however, insist that people have freedom to make life choices and to pursue happiness according to their own lights. Given the growing diversity of our society, these liberal and republican commitments conflict: We need to negotiate which sacrifices are required by each of us to pursue some public objective, and this requires deciding how much we want of the public object. In this sense, the scope for the realization of private and public “goods” is negotiated or socially constructed. This trade-off suggests that it is impossible; so make a clean separation between deliberating about what to do collectively and bargaining over how the burdens (and side benefits) of this pursuit should be shared. In this way, the low politics of the rough and tumble of everyday public life are intrinsically tied up with the “higher” pursuits. Indeed, we can disagree as to which good is higher. Every big public project entails these trade-offs. The ongoing debate about the Affordable Care Act is only the most recent example. In the case of the FDA, the shared public demand for the assurance that medicines be safe and effective was eventuated in the development of a powerful public—private political economy (admirably described in Carpenter's book) whereby private fortunes and public reputations are made and lost, and where hard choices are made that benefit some parts of the community more than others.

Like Aristotle, we think that deliberation—practical reasoning—is hard to avoid. Although, as Aristotle also recognized, people are often shortsighted and biased, the point of deliberation is to choose the best course of action, whether as an individual or a community. And he recognized as well that individuals do not choose only the best action even when they know what it is. Practical reasoning is much more difficult and more political in groups or communities. We recognize that deliberation occurs within the context of social and political inequality, often dominated by hierarchical power structures. Words can inform and persuade but can also mislead and intimidate. For this reason, democratic deliberation of the kind Jürgen Habermas describes (deliberation among equals aimed at pursuing common projects) is aspirational and not perfectly attainable. That is why our book articulates a republic of statutes that is an ongoing project—and a project that Tocqueville taught us is intermingled with the political health of this country.

Thus, every chapter in our book analyzes a small-c constitutional malady—ranging from state rules discriminating against pregnant women to the coverture of wives to disastrous monetary policies to administrative sanction for human torture—and explores the ways in which the modern administrative state has made halting progress in dealing with the malady. Our argument is not that legislators and administrators have reached the best solutions but only that the best solutions must be ones reached through legislative and administrative deliberation of the sort that we endorse.

Our punch line is that bad regimes like the antihomosexual constitution must be opposed primarily at the legislative and administrative level. Almost all of the rights actually enjoyed by lesbian and gay people today are those recognized by legislatures and administrators, often with some judicial prodding. It is the interaction among judges, legislators, administrators, and We the People that represents the advancement of the nation, slow and imperfect though it may be.