Freedom and time a theory of constitutional self-government PDF
Preview Freedom and time a theory of constitutional self-government
Freedom and Time Freedom and Time A Theory of Constitutional Self-Government JED RUBENFELD Yale UniversityPress New Haven and London Copyright(cid:1)2001byYaleUniversity.Allrightsreserved. Thisbookmaynotbereproduced,inwholeorinpart,includingillustrations,inany form(beyondthatcopyingpermittedbySections107and108oftheU.S.Copyright Lawandexceptbyreviewersforthepublicpress),withoutpermissionfromthe publishers. DesignedbyMaryValencia SetinStonetypebyBinghamtonValleyComposition PrintedintheUnitedStatesofAmericabySheridanBooks,Chelsea,Michigan LibraryofCongressCataloging-in-PublicationData Rubenfeld,Jed,1959– Freedomandtime : atheoryofconstitutionalself-government / Jed Rubenfeld. p. cm. Includesbibliographicalreferencesandindex. ISBN0–300–08048–4(cloth : alk.paper) 1. Liberty. 2. Time. 3. Democracy. 4. Constitutionalhistory— UnitedStates. I. Title. JC585.R82 2001 320'.01'1—dc21 00—044914 AcatalogrecordforthisbookisavailablefromtheBritishLibrary. Thepaperinthisbookmeetstheguidelinesforpermanenceanddurabilityofthe CommitteeonProductionGuidelinesforBookLongevityoftheCouncilonLibrary Resources. 10 9 8 7 6 5 4 3 2 1 Contents PartI:LIVINGINTHEPRESENT 1. TheMomentandtheMillennium 3 2. TheAgeoftheNew 17 3. ConstitutionalSelf-GovernmentontheModelofSpeech 45 4. TheAntinomiesofSpeech-ModeledSelf-Government 74 PartII:BEINGOVERTIME 5. Commitment 91 6. ReasonOverTime 103 7. BeingOverTime 131 8. Popularity 145 PartIII:CONSTITUTIONALISMASDEMOCRACY 9. ConstitutionalismasDemocracy 163 10. ReadingtheConstitutionasWritten:ParadigmCase Interpretation 178 11. SexDiscriminationandRacePreferences 196 12. TheRightofPrivacy 221 Index 256 Part I LIVING IN THE PRESENT One THE MOMENT AND THE MILLENNIUM Onthefirstpageofoneofhisnovels,theauthorofTheBookofLaughterand Forgettinghasawifeaskherhusbandaquestion.HowcanitbethatWestern Europeans, generally so anxious for their safety,drive atbreakneckspeedon the highway?The husband’sanswer: What couldI say? Maybe this: the man hunchedover his motorcycle can focus only on the presentinstantof his flight;he is caughtin a frag- ment of time cut off from both the past and the future;he is wrenched from the continuityof time; he is outsidetime; in other words, he is in a state of ecstasy;in thatstate he is unawareof his age, his wife, his chil- dren, his worries,and so he has no fear, because...aperson freed of the futurehas nothingto fear.1 This man is exemplary. For a long time, we have called on ourselves, in the name of freedom,to live—inthe present. The demand to live in the present has taken many forms. One repeated trope is casting off the dead hand of past law: “The earth belongs to the living,” wrote Jefferson.2 Another is waking from a sleep: “J’ai hiverne´ dans mon passe´,” said Apollinaire.3 Another: bringing a repressed past to present consciousnessandtherebyescapingitsgrip.The“neurotic,”Freuddiscovered, “suffer from reminiscences”;“they cannotget free of the past.”4 None of this is hedonism. Living in the present is a matter, in the first instance, not of pleasure but of freedom. And of speaking. Kundera’s motor- 1. MilanKundera,Slowness1–2(1996). 2. SeeinfraChapter2. 3. Literally,“Ihavehibernated[orwintered]inmypast.”GuillaumeApollinaire, LaChansonduMal-Aime´,inAlcools20(WilliamMeredithtrans.,1964)(1913). 4. SigmundFreud,FiveLecturesonPsychoanalysis,in11TheStandardEditionofthe CompletePsychologicalWorksofSigmundFreud16–17(JamesStracheytrans.&ed., 1962)[hereinafterStandardEdition]. 3 4 Livingin the Present cyclist, for example, who wants to be free of past and future, also wants to talk. He has an “impatience to speak.” He has the “stubborn urge tospeak.” Why? Because he too suffers from reminiscences, which he wishes he could forget. But why speak about such events? Not to dwell on them, or dwellin them.No:exactlyasFreudwouldhavehadit,byspeakinginthepresent,he would expurgate the past. Only speaking, he imagines, “can make him for- get.”5 This connection between freedom and speech is not fortuitous. It is as deeplyestablishedinthelanguageofconstitutionallibertyasinthatofmod- ernpsychology.Itariseswhereverfreedomhasbeenidealizedaslivinginthe present. For in this ideal, freedom consists of following nothing other than the self’s own will, its own voice. This voice, the one that speaks for the present and must be followed iffreedom is tobehad,appearsandreappears in modern thought, expressing itself under a wide variety of names: the “voiceofthepeople”;the“innervoice”or“truevoice”oftheindividual;the “free speech” that is the primaryrightof democraticliberty. And when it is experienced this way, as a matter of listening to our own present voice, freedom wars with all the texts, large and small, written and unwritten,that govern us. Inpoliticallife,theconjunctionoflibertywithpresentwillputsdemocracy at war with constitutional law. In personal life, it puts freedom at war with character and with all the commitments, professional or intimate, in which wefindourselvesengaged.Itleavesusmystified,inotherwords,bythepeo- ple we are, the monumentswe have built,and the aspirationswe pursue. The desire to live in the present has ahistory.As we willsee,itoriginates in an imperative of political liberty at the dawn of the modernageandpro- liferates thereafter—but only after having transmuted itself, obeying a logic wewillexplore,intoanimperativeofindividualliberty—throughoutmodern culture. We are used to thinking of modernity as defined in part by future- oriented ideals of progress, increasing technological control, and so on. But modernityachieveditsbreakwiththepastonlybyaccordingthepresentthe most profound normative and ontological privileges, and this privilegingof the present eventually gave to modern man—who becomes modern man through just this progression—as little reason to think of hissociety’sfuture as he has to thinkof its past. Why are we not more familiar with this history? Because it is constantly obligedtoconcealitself.Endlesslyrepeated,thedemandtoliveinthepresent mustendlesslypresentitselfassomethingradicallynew.Forthenoveliswhat 5. Id.at39,152,144,149. The Moment and the Millennium 5 this desire desires, which means that itcannever admittheextenttowhich it is itselfso repetitious,so historical,so old. Togivejustoneexample,consider“post-modernism.”Inthewordsofone of its most lucidproponents,the post-modern“life strategy”is: a determinationto live one day at a time....Toforbidthe past to bear on the present. In short, to cut the present off at bothends, to sever the present from history.To abolishtime in any other form butof a loose assembly,or an arbitrarysequence,of present moments;to flattenthe flow of time intoa continuouspresent.6 Ifthis“lifestrategy”seemsboldandnewtoitsproponentstoday,soperhaps did this one forty years ago: In short,...thedecisionis...toexplore thatdomainof experience where securityis boredom...andone exists in the present,in that enormouspresent which is withoutpast or future,memory or planned intention....7 What is extraordinary about the post-modern “life strategy” is only that it does not recognize how old-hat it is, how existentialist, how its image has been reflected forever in the smiling face (“live one day at a time!”) of the heartbroken,dreamlessconsumerismthatwefortunateWesternersknowand love so well. One especially far-reaching expression of the demand to live in the present can be found in modern economics. The freedom to gratify present prefer- encesherebecomestheprimaryterminunderstandingrationality,individual liberty, and indeed the very function of the individual in society. “Theindi- vidualserves,”asGalbraithputsit,“notbysupplying,”andnotby“saving[],” but “by consuming.” Leaving behind visions of man as maker or citizen or dreamer, we now have this: man as consumer.Moderneconomicrationality is far from hedonistic, but it remains wholly consistent with a society that does not save; a society that borrows uncountablesumsagainstthecreditof succeeding generations; a society whosestupefyinglygiganticproductiveap- paratus is organized around the ideal of more and more immediate gratifi- cation. 6. ZygmuntBauman,PostmodernityandItsDiscontents89(1997)(emphasisin original). 7. NormanMailer,TheWhiteNegro:SuperficialReflectionsontheHipster,4Dissent 276,277(Summer1957). 6 Livingin the Present “A certain emancipation from slavery to time is essential to philosophic thought,” wrote Russell. “To realize the unimportance of time is the gate of wisdom.”8 But the truth is thatevery effortto“emancipate”ourselvesfromtime,no matterhowsuccessful,must,inordertobesuccessful,entrenchitselfintime. It must hold; an “emancipation from slavery to time,” if it is to emancipate, must at a minimum be remembered, carried forward, projected into the fu- ture. The urge to emancipate the present from history is in this sense self- canceling.Asaresult,ithasnevercommanded,andcannevercommand,the sovereignpositionto whichit aspires. An example: the revolutions of the eighteenth century proclaimed the right of thelivingtogovernthemselves,buttheserevolutionsinfactsought and won historical entrenchment of a certain constitutional transforma- tion. If this transformation expressed the “voice of the people” then, it also projected its governance on generations to come. In America at least, the institutions of liberal constitutional democracy that emerged from this revolutionhaveremainedremarkablystable,paradoxicallyproducingapow- erfulimpetusinmodernpoliticstoconserve,topreserve,tobefaithfultothe past. Modernity’s psychological revolution is even more explicit in its contra- dictory relationship to the claims of the present. Psychoanalysis, ostensibly callingonindividualstofreethemselvesfrom,toletgoof,to“forgetabout” their past, also obliges its subjects to relive their past. Freud was well aware of this seeming contradiction. Having told his pupils that the neurotic lives too much in the past, he also told them this: “You willperhapsbesurprised to learn” that “the task of a psycho-analytic treatment” is “to fill up all the gaps in the patient’s memory, to remove his amnesias.”9 Remembering to forget: in order that individuals can forget their past, in order that they live more fully in the present, psychoanalysis asks them to dwell in their past more than any psychologyever had. Which is to say: the distinctively modern voice, the voice that speaks in the name of the present and hence of freedom, has always been equivocal. Proclaiming a freedom to be in the here and now, a freedom that was sup- posed to consist of living in the present, this voice turns out to require an interminableengagementwiththepastandwiththefuture.Theselfandthe society that were supposed ideally to live in the present turn out to have 8. BertrandRussell,OurKnowledgeoftheExternalWorld171(rev.ed.1961). 9. SigmundFreud,IntroductoryLecturesonPsycho-Analysis,16StandardEditionat 282.
The list of books you might like
