I. Popular Versus Professional Culture
Scholars dispute whether America is the most litigious of nations.4 Regardless of precise ranking, there is little doubt that Americans are very litigious. A tendency to turn to courts no doubt brings with it a tendency to think of interests in terms of rights.5 When I believe someone has violated my rights, I am likely to believe I have grounds for a lawsuit.6 We cannot answer the question of which comes first: the conception of rights or the opportunity to litigate. Each is a condition of the other. Institutions must serve beliefs, just as beliefs must sustain institutions.7 If we did not think in terms of rights, we would not turn to lawyers; if there were no lawyers, we would not think in terms of rights.8 To investigate culture requires that one keep in mind this reciprocal relationship between beliefs and practices.
To have a culture is to know how to proceed, to have an orientation, to be able to give an explanation, to understand what others are doing and what they expect of you. It is also, however, to know how to criticize the claims and practices of others. From the point of view of an inquiry into culture, there is no distinction between beliefs and practices: we discover beliefs by inquiring about practices, and we discover practices by interrogating (p. 1015) beliefs. Thus, to believe in the Constitution is a kind of know-how that extends across public authority, citizen responsibility, and institutional organization. It is to know how to make arguments—for and against a proposition or a practice—that have the potential to persuade the addressee, whether other citizens or officials.
Constitutional belief is not a series of propositions that together constitute a creed or a treatise. Rather, it is a way of making sense of past political events and of moving into the future with a sense of responsibility, a sense that it is our responsibility to maintain the Constitution.9 The Constitution appears to us as both given and aspirational, positive and normative. It is the founding that is never complete because to have a constitution is to have a project.10 The positive and the normative can fall out of balance, in which case each may be used as a measure of the other. We might come to think the project so corrupted by contemporary events that it should be given up. Conversely, we might find in our present circumstances alternative values that should be pursued in place of constitutional norms that have come to seem out of date. We occupy our beliefs and practices from a position that is always capable of self-reflection. Accordingly, there is no culture without doubt, no beliefs without heresy, no practice without dispute.
This reciprocity of practice and belief means that inquiry can start at either end of the relationship, for each will lead to the other. Beliefs and practices are only different ways of describing a common world of meaning. When beliefs and practices are in an equilibrium of reciprocal support, roles are well established. Professional roles, including that of lawyers, are like this. Thus, lawyers know how to frame a legal demand, they know the sources that can be used to build a persuasive case, and they know how to perform in the pursuit of that demand. They have expectations about the behavior of other lawyers and officials, including judges. A judge who failed to meet these expectations would be subject to sanctions, including reversal. The disciplining effect of the practice, however, is so strong that (p. 1016) sanctions are rarely necessary.11 That is the point of a role: it comes not just with its own knowledge practices, but also with its own norms and expectations.12
A professional culture differs from a popular culture not in the character of role, but in the stability of the role. That stability is obtained by regulating the conditions under which it can be pursued. Thus, professions create barriers to entry—sometimes, just because it takes a long time to master the beliefs and practices; sometimes, because there is a vested interest in limiting entry. The professional culture of lawyers has elements of both: it takes a long time to learn how to be a lawyer, and the ABA does not want too many lawyers.
In a popular culture in which legality is tied so closely to interest, it is no surprise that lawyers are viewed as both essential and suspect. Those upon whom we are most dependent are those whom we also fear. With power comes a fear of the abuse of power: Was not the king always most revered and most feared?13 We need lawyers, but we fear that they will abandon our claims for their own profit. More deeply, we fear that if we can sue others, then others can sue us. We fear that lawyers will assert false claims of right. These fears begin with the ordinary pursuits of professional lawyering—tort, contract, and regulatory regimes—but they extend to constitutional claims as well.
In contemporary America, we tend to fight every battle twice: first as a political contest, then as a legal contest. The Affordable Health Care Act is only the most prominent recent example.14 For this reason, national political campaigns are, in part, organized around fears and hopes of judicial appointments. Popular politics does not yield to claims of professionalism, yet the reverse is also true: the professional culture does not yield to popular politics. There is instead a constant negotiation at the point of intersection between the two cultures.
Lawyers become suspect when a gap arises between the professional and the popular culture. The professionalism of lawyers offers a very weak ground of justification for such a gap. Lawyers cannot make truth claims about the meaning of the Constitution as scientists (p. 1017) do about the natural order. Or rather, if they make such assertions, they will nevertheless be received as political claims. Professional claims of role may be adequate in the particular case—we defer to the outcome of a case—but they are not capable of finalizing a constitutional meaning. Consider our long simmering dispute over Roe v. Wade.15
Constitutional law always occupies this interface between professional culture and popular culture. The professional culture cannot remove an issue from renewed political interventions. Constitutionalizing slavery did not end the political debate any more than interpreting equality as separate but equal ended a later debate. Modern constitutional scholars, led by Alexander Bickel, thought of this interface as the point at which judicial doctrine must gain and sustain popular approval. Thus, the subtitle of Bickel’s major work: “The Supreme Court at the Bar of Politics.”16 He thought it obvious that in a democracy constitutional doctrine could only legitimately survive if it garnered popular support. The Court’s political role was, accordingly, to manage the interface of the professional and public such that any gap that emerged was quickly overcome. There was a professional culture of constitutional law—a culture Bickel described as the elaboration of principles—but politically it was dependent upon popular culture. The professional-popular intersection was imagined by Bickel’s generation as a “national seminar” in which popular culture was to be “civilized” by the professional elite.17
While Bickel approached the interface by moving from courts to politics, contemporary scholars move in reverse order, beginning with popular, political movements.18 These scholars observe that both progressive and conservative political movements regularly mobilize around constitutional demands. This body of scholarship explores the way in which these movements create pressure for—and sometimes succeed in achieving—doctrinal change. The development of constitutional doctrine is not principle working itself pure, but rather the residue of political conflict.19 Bickel thought of law directing politics; contemporary scholars see politics directing law.
(p. 1018) A cultural approach sees these inquiries as inverse images of each other: both are situated at the popular-professional interface. Movement in both directions is made possible by shared beliefs about political identity and constitutionalism as a practice of self-government. Consider, for example, the movement in the constitutional jurisprudence of gay rights.20 Bickel would see doctrine working itself out as a matter of principle as the Court educated the public. Contemporary scholars instead see the Court responding to political movements that pushed constitutional claims at every level of politics—from the street to the state house. There is no right answer to the direction of change, for the professional and popular cultures of constitutionalism are bound together not in an equilibrium or an agreed hierarchy. Rather, each attempts to use the other.21
Culture refers to the background conditions of belief and practice that make imaginable this form of political mobilization alongside this sort of legal claim. Culture on this view is not what we argue about in the ordinary case, but that which makes argument possible. This is not legal doctrine or a set of doctrines, but a ready-to-hand schema offered in multiple narratives that vary as the institutional setting varies. Those settings include the schoolroom, the political rally, and the courtroom, as well as movie theaters, popular fiction, and histories. The way in which we frame constitutional claims is different in each setting, but all are bound to each other in the structure of the narrative that links constitutional text to history to self-government.
Before we know what the constitution means doctrinally, we accept that whatever it means is authoritative. Not because someone has the power to tell us what to do or to believe, but because we are already invested in constitutionalism as a matter of political identity. Here we approach the hardest point to understand. While our constitutional culture is about identity, it is not about any particular doctrinal belief. Belief in the popular sovereign as the source of the constitution is like earlier belief in the sovereign—fundamentally empty of content. Theologically, this was expressed in the idea that God is never the subject of any predicate. A totally free actor, which is one way of expressing the nature of the sovereign—popular or otherwise—is always beyond any particular characterization. Thus, our constitution is open to widely divergent interpretations and unlimited amendment: we can become whoever it is we decide to be and yet we remain the same.
In practice, the emptiness of sovereignty means that diametrically opposed claims can be made on behalf of the Constitution. It also means that no resolution can ever be final. It means that we are free even as we are governed by law: we must decide for law. Sometimes, that decision is to use violence in the defense of the Constitution. Thus, the American popular narrative is a history of violence read as sacrifice, which begins with the Revolution and continues right up to 9/11 and the war on terror. The character of the popular sovereign as both everything and nothing supports the sacrificial nature of our (p. 1019) popular, constitutional culture. No particular doctrine or practice could ever claim a transcendent value adequate to ground sacrifice.22
Scholars make a mistake if they think of the Constitution as the alternative to violence—a social contract view. In America, the Constitution can call forth violent sacrifice. An account of culture, then, must be deep and rich enough to explain this history of violence. There must be, as Lincoln put it, “a reverence for the laws.” That reverence, he said, should “be breathed by every American mother to the lisping babe, that prattles on her lap”; it should “be preached from the pulpit” and “proclaimed in legislative halls.”23 It must, in other words, inform the popular culture.
To investigate the relationship of constitution to popular culture is, accordingly, to explore the relationship between law and sacrifice. Citizens do not make the decision to defend the Constitution by consulting their lawyers, but lawyers are ultimately dependent upon that decision. If citizens were not willing to make that decision for the Constitution, lawyers would not be secure in their beliefs about the consequences of their own practices. A constitution that will not be defended is one that may not be obeyed.
II. Method and the Social Imaginary
It is a mistake of theory to believe that political principles—no matter how rational—can make a legal claim based on their truth alone. Law is neither mathematics nor logic. Legal truths do not precede persuasion; they are not discovered as if they were laws of nature. To take up the question of culture is to shift the emphasis in the phrase “We hold these truths to be self-evident” from “these truths” to “We hold.” These truths must be self-evident to someone, and to whom else but us? They must be self-evident to the political community to which they are addressed.
No proposition is self-evident in itself.24 Rather, self-evidence is a quality a proposition gains when set against an entire background of belief and practice. A proposition deeply embedded in that background appears self-evident. It is self-evident because its denial would require us to give up too much of what we take for granted about our world. Consider, for example, the proposition that “all men are created equal.” What was self-evident about that proposition in 1776 is hardly the same as what is self-evident today—not just with respect to the social status of slaves and women, but a whole range of beliefs about theology, the public sphere, knowledge, and time. Borrowing a term from cultural anthropology, we can think of this background as “webs of significance.”25 The self-evident proposition is secure within these webs, which together constitute the culture.
(p. 1020) We cannot have our own personal culture any more than we can have a private language.26 Like language, culture is an objective fact about our world even though it cannot exist apart from the imaginations of individuals who actually use it. A living language is a ready-to-hand means of getting along in the world. It is what can be said by those who use it.27 It is not reducible to a list of words in the dictionary and of rules in the grammar book, both of which come very late. The same is true of a culture; it is a ready-to-hand set of beliefs and practices that locate us in a world of meaning.
Borrowing a term from philosophy, we can speak of the social imaginary as our capacity to navigate these webs of significance.28 The work of the imagination is narrative: of our beliefs and practices we can give an account—actually multiple accounts—as we draw upon different elements of the webs of significance. These are the narrative resources we use to explain ourselves and others, both who we are and what we must do. These narratives are not the product of reason, but of history. They are not well-ordered: they overlap and they are in tension. I can speak of myself as father, son, spouse, scholar, political partisan—the list is without end. In a constitutional controversy concerning affirmative action, for example, I might recognize both a narrative of historical injustice and one of individual achievement.29 Or, in a case about the speech rights of teenagers, I might recognize a narrative of individual autonomy and of parental responsibility.30 In each instance, I provide a narrative of the particular situation as (p. 1021) it fits—well or poorly—with a more general sense of the meaning of these categories. Those narratives will intersect in different ways; there will be tensions among them, maybe even contradictions. Ordinarily, I can live with the tensions. Only when there is an immediate conflict must I decide among them.
Culture should be approached, then, as a set of imaginative resources. It is that which “can be said” in an exchange. To anything that is said, we can always respond “why?” There is always more that can be said; a conversation can always go further. The simplest cultural unit, accordingly, is the exchange: proposition and response.31 Cultures are plural compared to each other, but they also ground an internal pluralism. Precisely because nothing can be settled within the narrative plentitude of a culture, the endless quality of narrative must be matched with an authority to decide. Politics is endlessly discursive, but still decisions must be made.
Authority in law, Robert Cover argued, is the jurispathic moment, cutting off the endlessly jurisgenerative character of narrative.32 This conflict of the legally jurisgenerative and the jurispathic is powerful imagery, but it is not quite correct, for we must be able to give an account of authority as well. We must be able to set political authority within our narrative of law. Our practices and beliefs extend not just to the substance of the law, but to authority to decide the case. Accordingly, authority always poses an issue of legitimacy: there is no authority that cannot be questioned. Conversely, authority always offers an account of itself. A court does not just tell us “what the law is,” it must also tell us who or what the judge is. Unsurprisingly, some of our most vigorous disputes are over the nature of judicial authority.33 Cover’s view of authority shares a good deal with Carl Schmitt’s view that “Normatively, the decision emanates from nothingness.”34 It erupts, Schmitt thinks, like a miracle into our normal discourse of law. Cover is right to point out that decision is routine, not extraordinary. But he is wrong to take a Schmittian attitude of placing decision against norm. Both Cover and Schmitt see that the decision does not follow logically from the argument. But neither of them pays enough attention to the way in which decision is a function of role and role is sustained by exactly the same sort of contesting narratives that (p. 1022) attach to norms. The decisions of law do not come from nowhere; they come from judges. We have a lot to say, and to argue about, with respect to judges.35
A culture is not something apart from the symbolic acts—beliefs and practices—that it makes possible and that maintain it. It is organic, not artificial, in the sense that its elements do not form its parts. Just as we cannot make a living organism out of a collection of organs, we cannot form a culture apart from the narratives in which the whole is already present in the particular. We cannot form a sentence until we have a language; we cannot perform a ritual until we have a religion.36 Thus, the narratives by which we explain our beliefs and practices always point beyond themselves to the whole. Starting from anywhere, we are connected to the entirety of the webs of significance.
None of this is abstract. We cannot go from normative theory to a legal practice without the intermediary of politics, and we do not have democratic politics without care and trust. An authoritarian regime will deploy force in place of care and trust, while a democratic regime is committed to a politics of persuasion. There can be no persuasion without a common object of care, and none in the absence of trust in the speakers. Persuasion, in other words, requires a certain kind of community.37
The social imaginary is plastic but not easily transformed through deliberate effort. Freud thought he was discovering the organic facts of the psyche, but he was actually tracing the social imaginary of a certain class of Viennese bourgeoisie. The recalcitrance to change that he encountered, however, is genuine. This explains why it is so hard to change the character of a polity by wholesale reform whether initiated from within or without. Whatever new institutions, structures, or rights are introduced, their meaning will be interpreted through the narratives in circulation. If individuals imagine their place in the political order through familial relations, for example, that is not going to change simply because new mechanisms of representation are put in place. Rather, those new mechanisms may be co-opted by the existing narratives. Real change requires more than a good (p. 1023) idea or an institutional innovation. Minimally, it is likely to require time. For this reason, it is very difficult to predict what will result from even the most well-meaning reforms. Fundamental change is often a consequence of deep trauma—for example, postwar Germany or Japan.38
The most important cultural resources are those archetypal narratives that structure the horizon of understanding that is continually reproduced by the social imaginary. These are narratives of birth and death, of family and community, of history and destiny, of love and evil. They are not objective descriptions, as if the same thing would be said by any person describing the situation, or even by the same person twice. Rather, the speaker deploys narrative forms that are endlessly malleable in response to particulars.39 He adds details and he makes exceptions, which together bring general expectations in contact with the particular situation. He may, for example, tell us that his family failed and he has broken off contact for one reason or another. We understand people by their failures just as much as by their successes.
We experience ourselves and others as occupying places in narratives that we are prepared to hear and to report. The same is true of institutions and events. We experience them as meaningful in the first instance, which means we can give an account of them. This meaning is not something we add on; rather it is constitutive of our way of occupying a world. When we cannot give such an account, we are lost. It is as if we were dropped into a foreign land in which we have no more access to the social imaginary than to the language. In both respects, we are dumb.
There is no single, correct narrative. There are always alternative interpretations of persons, events, and institutions. There might be an “authorized biography,” but that cannot stop the endless proliferation of new biographies. The same is true of autobiographies: each of us is constantly reimagining the narrative of our own life. We do the same with the history of the community. We disagree about the meaning of everything—sometimes in minor ways, sometimes in major ones. Disagreement does not undermine our common world; rather, it is precisely the way in which we collectively occupy a common symbolic space. Again, think of language, which enables coherence across difference. We disagree even as we understand each other. We recognize the possibility that we might be persuaded (p. 1024) to change our minds even if we think it unlikely in a particular case. Nothing is set forever, although some things are considerably harder to abandon, and not everything can be abandoned at once. We confront an enemy when the possibility of agreement is excluded, for we see there an existential threat.40
Politics is one important domain for persuading and being persuaded; it is the domain productive of and protected by law. But political argument is not different in kind from the competition of narratives that circulate elsewhere. We do not become something other than ourselves when we act as citizens. A narrow-minded view is that we vote our personal interests, but we are constantly confronting the same task of reconciling our interests and our principles, or our short-term pursuits and our long-term concerns. The same sorts of arguments that appear in politics—and even in the pages of U.S. Reports—occur every day at home, at school, and simply in talking about the latest movie or book.41 Equality, dignity, justice, and fairness do not mean one thing at law and another thing in the family or workplace. They do not mean one thing at all; rather, each points to a range of narrative contestations that might be resolved differently at different moments and in different settings.
What in theory is separated—for example, the private and the public—is closely linked in the imagination’s deployment of similar narratives across different domains. The story of love and sacrifice in the family draws on the same archetype as that operating in politics.42 Every political sacrifice is simultaneously a sacrifice for family.43 When these split apart, we are in an extraordinary situation. This is why we are so shocked by accounts of revolutionary regimes in which children turn in their parents. It is also why there is a felt urgency to the belief that our deepest values are included in the Constitution: this is true, for example, of those on both sides of arguments over abortion, capital punishment, or gun control.
These archetypal narratives do not themselves resolve particular controversies, including constitutional controversies. Understanding the narratives upon which we draw when describing family relationships, for example, does not tell us anything about a particular family. It does not tell us who we should marry, whether we should divorce, or what we should encourage our children to do. The archetypal narratives of the state will not tell us who is friend or enemy. They will not tell us what our social welfare policies should be or (p. 1025) whether the president should have the power to deploy troops abroad. The social imaginary can no more answer these questions than a language can tell us what to say. Culture is a resource for persuasion, but it is still up to us to decide.
Because a culture is not the product of theory, there is no way to understand it except through interpretation of the actual products of the imagination. The process is the same as with the products of the aesthetic imagination. A theory of art will not tell us what art is actually produced and in circulation. It will not tell us how particular objects stand with respect to each other, or how the art of one era relates to that of other eras. When we interpret a work of art, we place it in a sort of architectural account of the present in which other works by the same artist and works by other artists fill out the overall design. We categorize and arrange. We answer the question of where this work fits by offering an interpretation of the possible spaces for creative response. The architectural inquiry is always matched with a genealogical inquiry. We place the work in a history, explaining how it draws upon and responds to prior work. Interpretation is a conversation in both these dimensions.
The same double dimensions of interpretation are present when we turn to the products of the social imaginary, including the Constitution. Architecturally, it is a network of meanings linking ideas such as revolution, constitution, sacrifice, popular sovereignty, and love. Genealogy is never far from architecture: this network points immediately to an origin in Judeo-Christian faith. A community in which practice and belief are organized around interpretation of a sacred text will reproduce similar practices wherever matters of transcendent value arise. The social imaginary is like a virus that is constantly reproducing itself.44 Wherever it looks, it can see only itself. Genealogy recovers remnants of that past that remain as “felt” meanings carried forward in the shape of the narrative itself.
III. Culture: American Civil Religion
We capture something of the architecture and genealogy of U.S. constitutional culture if we approach it as a civil religion, moving between moments of sovereign revelation and textual hermeneutics. This civil religion is something quite different from an intrusion of the church into politics, yet it is not unrelated to the nation’s traditional religiosity. That tradition was originally Protestant, and this left its mark. The colonists were deeply attached to ideas of God’s provenance, of an errand into the wilderness, of sacrifice, and of their own exceptional nature. Much of this has been secularized, but little of it has disappeared. For many citizens, national life remains a mission—a project of transcendent significance. They do not think of the nation as just one among many, seeking to advance its own material interests. Rather, they think they are acting for others even when they (p. 1026) are acting for themselves. Thus, the United States is to itself “the last best hope of mankind.” Of course, none of these propositions is uncontested. Citizens may believe all of this even as they question those beliefs, wonder if they can continue, and indeed whether they should continue.45
While these themes have their origin in the theocratic character of the early colonial communities, their influence persists right up to the present. They have become accessible to everyone regardless of sectarian, religious beliefs. They offer the narrative frame of the nation’s political culture. They are themes that organize contemporary political narratives, across parties and movements. This Protestant-inflected rhetoric cannot be dismissed as either hypocritical manipulation or empty catchphrases, for it is the ground for successful political persuasion. Sometimes, it is the stuff of sacrifice. Often, it is the basis of critique, for along with the sacred comes a sense of sin, of failing to live up to what we must be. Only by taking it seriously do we begin to understand the nature of the care for and trust in the Constitution.
The nation’s civil religion is a mimetic reproduction of an imaginative structure, the origins of which are in Christian practice and belief. A civil religion is not a thin remainder of an earlier Christian faith—Christianity with Christ figures, but no Christ. It is not thin at all, but rather a rich practice of faith attached to an experience of the sacred as it appears in politics.46 Earlier ways of imagining do not disappear with the establishment of the secular state. Citizens bring with them their basic beliefs about individual and community, values and responsibilities. Political practices must make sense in light of everything else citizens believe.
The nation’s political faith begins with the belief that law is the product of the popular sovereign: The popular sovereign authors the law. This relationship of sovereignty to law is at the heart of the most controversial characteristic of the nation’s legal practices from a global perspective: the insistence on American exceptionalism. No other country invests so much in a text or practices a hermeneutics that tends to exclude everything outside of its own tradition.47 American exceptionalism is a set of practices that arise out of a commitment to the idea that law is a representation of the popular sovereign.
(p. 1027) We make a category mistake if we think of popular sovereignty as simply a matter of electoral participation: of access to popular elections or referenda. Popular sovereignty is fundamentally a matter of faith. Like sectarian gods, the popular sovereign appears only to the faithful. The popular sovereign steps into the creative place of the religious sovereign. Doing so, it takes on the attributes of the sacred. Indeed, from within the community, this act of creation can appear as if ex nihilo. There is a belief that Americans created themselves in an uncaused act of sovereign self-authorship—that is, it was a totally free act. There are reasons for the Revolution, but no external cause: responsibility lies exclusively with the sovereign people.48 This, of course, is not a statement of fact, but of belief. It is the way in which belief in revolution is maintained in the social imaginary, not the way in which it is explained by the political scientist. The latter’s explanation offers causes, but those are of no more significance to the faithful than causal explanations of the rise of messianic religions in the ancient Near East are to faithful Christians.
The popular sovereign retains an unalienable power to decide to overthrow law through an exceptional act of revolution, because revolution is nothing less than the immediate presence of the popular sovereign. American law is always bound by this concept of violent revolution, for the Constitution has no other foundation of its own legitimacy. Just as Christianity is a set of practices bound by the imagined possibility of Christ’s return, ending one time and beginning another, so this civil religion of law exists in a bounded time. In both cases, it is not the fact of return, but the imagined possibility of return that does the work of creating contemporary meaning. The nation’s constitutional culture experiences time as this strange not-yet of messianism.49
Were we to come to think that revolution is an empty idea of no significance, our capacity to see ourselves in law would shift.50 At stake is the meaning and nature of freedom in and through law. The Constitution appears not as something that is imposed upon us by past authorities. It is rather the product of our own self-authorship. The vibrancy of that (p. 1028) idea depends upon our continuing belief that we have the capacity to withdraw authorship, to decide to write again and to write differently. A chosen people, even if chosen only by themselves, always understand themselves as existing under the possibility that the choice could be different.51
We know that the popular sovereign was present in the Revolution because it produced the Constitution. We imagine revolution only from the perspective of the legal order that locates its foundation there. Sovereign and law are bound together in the American political imaginary. The relationship is analogous to that between divine presence and the biblical text.52 We may believe that God authored the text, but we have no independent access to God through which we might check the authenticity of that belief. We come to God through the text, even though we say that God precedes and produces the text. So it is with the Constitution and the popular sovereign: the claim of authorship is an assertion of faith. In both cases, we accept the text as a gift that is also a sacred trust. The Constitution is the gift the sovereign people have given themselves. This set of beliefs grounds our condition of care for the Constitution. Conversely, as those beliefs weaken, we care less for the Constitution: we become puzzled as to why it has authority over us as we had no vote in its production.
The popular sovereign is a transtemporal collective subject. It is the “we” of American history. It is the mystical corpus in and through which each citizen takes on a political identity. Sacrifice is the giving up of the finite body and the taking on of sovereign presence. Sacrifice offers the mythical foundation realized first in the Revolution and repeated in the regular eruptions of war ever since. Detached from the king’s body, the popular sovereign can appear anywhere. When it appears, it is always a matter of life and death. Most recently, we have seen this phenomenon of sacred presence in the response to terrorist attacks on airplanes and office buildings. These are the battlefields of the twenty-first century. They will be remembered for a short while as personal tragedy; they will be enduringly memorialized as sites of the calling forth of the transcendent meaning of the state in and through acts of sacrifice.
Popular sovereignty is not a moral concept: indeed, quite the opposite. Morality takes a universal perspective, while sovereignty is particular.53 The sacred always stands apart from universals.54 Thus, belief in popular sovereignty rejects any external measure. The popular sovereign says, along with the God of the Old Testament, “I am what I am.”55 The United States, accordingly, is not a stage of political organization on its way to something else. It is not a means to any other end, including universal justice, cosmopolitanism, or transnational institutions. The American civil religion is, accordingly, a challenge to those (p. 1029) who believe in a global order of human rights. The converse is also true: as belief in human rights grows, the nation’s civil religion is challenged. One way to characterize the present moment is to say that there is a gap between an increasingly cosmopolitan legal order, including human rights law, and the persistence of a civil religion of constitutionalism in the United States. How that gap will be resolved remains an open question.56
A constitution that represents the popular sovereign speaks, in the first instance, not of universal equality, but of difference. There is nothing just about the distinction of citizen from alien, even if we do not collapse it into the distinction of friend and enemy. Citizens approach the sovereign demand with faith, not judgment. From the outside, we might say that the Constitution is the product of a group of eighteenth-century wealthy white men, including slaveholders, who sought to advance their personal interests. We might note that the Constitution enshrined injustice in a number of ways, beginning with slavery but extending to its rejection of the principle of one person/one vote.57 That the Constitution was, and in many respects remains, unjust does not—or does not necessarily—undermine our faith that it is grounded in the exceptional appearance of the popular sovereign. The narrative of legitimacy is not the same as that of justice. Of course, at some point we might be overwhelmed by the injustice and come to believe that the Constitution is not the product of the popular sovereign, but we do not ordinarily condition our faith on justice.58
Care for the Constitution is an existential condition of finding oneself; it is not care as attachment to an object of interest. This is the care that shows itself in the loving act of sacrifice. We do not first measure the justice of the Constitution and then decide if it is worth our sacrifice. We do not question the sacrifice of those who died in the Revolution, the Civil War, or the wars of the twentieth century.59 The relationship here is not different (p. 1030) from the one we have with our children: we love them first, and then hope that they will be good. We want them to be just because we love them; we do not love them because they are just.60 Yet, even with our children there can come a point at which we are overwhelmed by their injustice.
Our culture of law and violence is a practice of constitutionalism. The exceptional act of sacrifice is not just the moment of sovereign presence unbound to text; it is the reaffirmation of the constitutional order as a sacred order. The Constitution is always the object of attack—“they hate us for our freedom”—and it is that which is defended. The pledge of a life is always to defend the Constitution.61 Defending the Constitution one re-enacts the moment of free, constitutional creation through sacrificial violence.
The reappearance of the sovereign is never peaceful. Sacred presence always threatens to destroy—literally to consume—the ordinary. That destruction can be without end, for the value of the sovereign is beyond measure. Thus, no matter how much the state promises to protect life and property, the sovereign can demand all of the state’s resources, including the life and well-being of its citizens. A state that worships the popular sovereign is never far in its imagination from a state of total war, because the only measure of a transcendent value is the totality of all things.
This total demand was the story of Jonah and of Christ. Today, it is the simultaneous demand and threat of the popular sovereign. Only when we grasp this can we understand how the United States has lived for fifty years under the threat of mutual assured destruction. This threat of complete destruction is reconfigured but continued in the threat of random destruction acted out by today’s terrorist.62 The demand for sacrifice of everyone has become the demand for sacrifice of anyone. The point that political identity is ultimately a matter of life and death remains the same. Sovereignty and sacrifice remain linked in the political imaginary.
The nation’s civil religion is one version of a larger tradition of Western political faiths. Elsewhere these beliefs contributed to the rise of fascism. There are indeed connections to be made, and the United States has its own darker history of political practices that should be condemned for their injustice even as they express common beliefs about the nature of the sovereign body. In the nation’s history, not to be thought capable of bearing the body of the popular sovereign was to be in a dangerous political position. At various times, blacks, Asians, Catholics, gays, and women fell into this category. We would be wrong, however, to think that overcoming these inequalities was a process of abandoning the idea of popular sovereignty for an abstract idea of justice. Instead, what we have seen over the last century has been an incorporation of others into our civic faith. It is (p. 1031) not an accident that the last barrier to full equality is often entry into the military: only those who can bear the body of the popular sovereign—the mystical corpus—can sacrifice themselves for the state.63
While the nation’s civil religion puts the concept of popular sovereignty at its core, the United States has been saved from the worst excesses of the European practice of sovereignty by the equally strong insistence on the Constitution as the rule of law. This is not law in place of sovereignty, but law as the representation of sovereignty. Our civil religion is Revolution and Constitution. Law is not something apart from popular sovereignty. This idea goes back all the way to the Mayflower Compact of 1620. Law is more than a one-time product of a sovereign act: it is a trace, a remainder, a relic, a sign of sovereign presence.
Participating in law has the character of ritual: the routinization of the miraculous. The Constitution’s place in the political imaginary is of biblical dimensions. Just as the biblical text is a finite representation of an infinite resource, so is the Constitution. Both texts pose special problems of interpretation. Every interpretation of these texts makes a claim on faith. Thus, a noncitizen is not in a position from which he or she can tell us the meaning of our Constitution, any more than a Jew can tell a Christian the meaning of the New Testament. This is not true of claims of justice or fairness, for these are universal values. Constitutional interpretation is a privilege of a community of faith, precisely because of its ritual character as a representation of that which can never be fully represented. For this same reason, there can be no end to our interpretive debates over the meaning of our law: there is always more to the meaning of the Constitution than law itself can speak.
Approaching judicial practice as a ritual illuminates the exceptional focus of American judges on constitutional text and original meanings. These interpretive practices are not efforts to “do justice” as if interpretation will lead to the morally correct answer.64 No, these are ritual practices by which the Court shows itself to be worthy of the trust of the faithful. They are rituals that mark the Court’s voice as not its own.65 The words of an opinion are to give voice to the popular sovereign as the author of the text. Listening to the Court, we are to hear ourselves, not individually, but as part of a transtemporal, collective subject. Ritual must support faith, just as faith makes possible ritual.
If we fail to hear that transcendent subject that is the author of the Constitution, then we will not be able to answer the question of why a document written by an elite group of wealthy slaveholders binds us today. We will not understand our practice of constitutional interpretation, including the judicial role. We will not see how the nation can be simultaneously committed to law and to violence, because we will not read that violence as sacrifice.
2 For a full treatment, see Baldwin, J, Faulkner, S, Hecht, M and Lindsley, S (eds), Redefining Culture: Perspectives across the Disciplines (2006). The editors conclude “[culture] is an empty sign that everyday actors—and social scientists—fill with meaning. Culture, as a signifier, can be understood only in the context of its use. … This use is not always dictated by discipline, because various disciplines may adopt one approach, and those within a discipline argue for disparate approaches …” (72).
4 On the question of whether Americans are more litigious than others, see Ramseyer, J and Rasmusen, E, ‘Are Americans More Litigious? Some Quantitative Evidence’ in Buckley, F (ed), The American Illness: Essays on the Rule of Law (2013) 66. Looking carefully at the quantitative evidence, they conclude the United States is not more litigious than other comparable countries.
5 This point was already made by De Toqueville, A, Democracy in America, Goldhammer, A (trans), (2004). “The language of the judiciary becomes the vulgar tongue. Thus the legal spirit, born in law schools and courtrooms gradually spreads beyond their walls. It infiltrates all of society, as it were, filtering down to the lowest ranks, with the result that in the end all the people acquire some of the habits and tastes of the magistrate.” See further Glendon, M, Rights Talk: The Impoverishment of Political Discourse (1991).
6 Whether I actually pursue that opportunity depends on many factors, including available resources.
8 Or, if we did think of rights, they would not mean the same thing to us. Rights can be aspirational, moral, or regulative without being legally enforceable. Think for example of animal rights or the wide variety of claims put forward as human rights.
9 The president of the United States swears the following oath of office: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” U.S. Const. article II, section 1, clause 8. Moreover, the Constitution requires that “the Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” U.S. Const. article VI, clause 3. Similarly, the naturalization oath (called the “Oath of Allegiance”) requires that naturalized citizens swear to “support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic” and to “bear true faith and allegiance to the same.” 8 C.F.R. Part 337 (2008). See Levinson, S, Constitutional Faith (1988) 90–121 on loyalty oaths.
10 Compare Justice Brennan’s famous article on state constitutions: “Constitutions are not ephemeral documents, designed to meet passing occasions. The future is their care, and therefore, in their application, our contemplation cannot be only of what has been but of what may be.” Brennan, W, ‘State Constitutions and the Protection of Individual Rights’ (1977) 90 Harvard Law Review 489, 495. See also President Obama’s second inaugural address, in which, while referring specifically to the Declaration of Independence, he captures this idea of the project by repeating the phrase “our mission is not complete until. …” ‘Inaugural Address by President Barack Obama,’ January 21, 2013, available at http://www.whitehouse.gov/the-press-office/2013/01/21/inaugural-address-president-barack-obama.
11 Fiss, O, ‘Objectivity and Interpretation’ (1982) 34 Stanford Law Review 739, 746–747, “Judges do not belong to an interpretative community as a result of shared views about particular issues or interpretations [as, by contrast, literary critics might], but belong by virtue of a commitment to uphold and advance the rule of law itself. They belong by virtue of their office … Even if their personal commitment to the rule of law wavers, the rule continues to act on judges; even if the rule of law fails to persuade, it can coerce. Judges know that if they relinquish their membership in the interpretive community, or deny its authority, they lose their right to speak with the authority of the law.”
12 See Luban, D, Lawyers and Justice: An Ethical Study (1988) 118–119: “If we could not count on persons occupying certain social roles … to act according to the expectations of their roles, we would live in a very capricious society indeed. It would, furthermore, be a society in which our ability to accomplish our daily business would be delivered over to the personal discretion of many people we have no particular reason to trust.”
13 Compare F Millar’s classic account of the Roman imperial system, The Emperor in the Roman World: 31 BC-AD 337 (1977) 9: “[an emperor’s] personal favour … had from the beginning a darker side to it. However consistent and comprehensible were the attitudes and priorities which informed the system, there remained an essential element of arbitrariness on the part of the emperors, of fear, sycophancy and uncertainty on the part of their subjects … The fear which watched the emperor’s every gesture and expression is vividly reflected in an incident before Augustus in Syria in 20 BC: a delegation from Gadara accused Herod of malpractices, saw that the emperor’s friendly bearing towards the king remained unaltered—and committed suicide to a man.”
14 National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) (upholding the constitutionality of the Affordable Care Act).
16 Bickel, A, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2 edn, 1986).
17 See Rostow, E, ‘The Democratic Character of Judicial Review’ (1952) 66 Harvard Law Review 193, 208 (“The discussion of problems and the declaration of broad principles by the Courts is a vital element in the community experience through which American policy is made. The Supreme Court is, among other things, an educational body, and the Justices are inevitably teachers in a vital national seminar.”). Bickel, n 16 above, 26, borrowed Rostow’s phrase. Dworkin’s Hercules, “an imaginary judge of superhuman intellectual power and patience who accepts law as integrity,” is perhaps the last expression of this judge as academic ideal. Dworkin, R, Law’s Empire (1986) 239.
18 See, e.g., Post, R and Siegel, R, ‘Democratic Constitutionalism’ in Balkin, J and Siegel, R (eds), The Constitution in 2020 (2009) 25, 26 (“important aspects of American constitutional law evolve in response to substantive constitutional visions that the American people have mobilized to realize”). The discussion in that chapter builds upon Post, R and Siegel, R, ‘Roe Rage: Democratic Constitutionalism and Backlash’ (2007) 42 Harvard Civil Rights-Civil Liberties Law Review 373: “the premise of democratic constitutionalism is that the authority of the Constitution depends on its democratic legitimacy, upon the Constitution’s ability to inspire Americans to recognize it as their Constitution. This belief is sustained by traditions of popular engagement that authorize citizens to make claims about the Constitution’s meaning and to oppose their government—through constitutional lawmaking, electoral politics, and the institutions of civil society—when they believe that it is not respecting the Constitution. Government officials, in turn, both resist and respond to these citizen claims. These complex patterns of exchange have historically shaped the meaning of our Constitution” (374). See also Kramer, L, The People Themselves: Popular Constitutionalism and Judicial Review (2004).
19 Compare Unger, R, The Self Awakened: Pragmatism Unbound (2007) 7 (“Institutions and ideologies are not like natural objects, forcing themselves on our consciousness with insistent force and reminding us that we have been born into a world that is not our own. They are nothing but frozen will and interrupted conflict: the residue crystallized out of the suspension or containment of our struggles.”).
20 From Bowers v. Hardwick, 487 U.S. 186 (1986), which upheld the constitutionality of state prohibitions on sodomy, to Lawrence v. Texas, 539 U.S. 558 (2003), which declared such laws unconstitutional, to United States v. Windsor, 133 S. Ct. 2675 (2013), which held unconstitutional federal discrimination against same-sex marriage.
21 Other examples of this movement between popular and professional constitutional cultures include issues of gun control, right to life, assisted suicide, privacy, immigrant rights, and capital punishment.
22 We must speak of love to explain sacrifice. It too has this quality of nothing in particular while making everything possible.
23 Lincoln, A, ‘Address before the Young Men’s Lyceum of Springfield, Illinois’ in Basler, R (ed), The Collected Works of Abraham Lincoln (1959) Vol 1: 108, 112.
24 On contemporary arguments for and against this perspective, see, e.g., Fumerton, R, ‘Theories of Justification’ in Moser, P (ed), The Oxford Handbook of Epistemology (2003) 204–233 discussing coherentism (the view expressed here) and foundationalism (the contrary view: justified beliefs rest ultimately on self-evident truths).
25 Geertz, C, The Interpretation of Culture (1973) 5: “Believing, with Max Weber, that man is an animal suspended in webs of significance he himself has spun, I take culture to be those webs, and the analysis of it to be therefore not an experimental science in search of law but an interpretive one in search of meaning.” Geertz emphasizes that in describing culture, “what [anthropologists] call our data are really our own constructions of other people’s constructions of what they and their compatriots are up to,” so that “right down at the factual base, the hard rock, insofar as there is any, of the whole enterprise [of cultural description], we are already explicating: and worse, explicating explications” (9). See also Brigham, J, ‘Institutional Authority and Political Momentum: Constitutional Equal Protection in American Politics’ in Lindgren, J (ed), Horizons of Justice (1996) 1, 2 (“The law is embodied in a semiotic web that to a greater or lesser degree connects legal institutions to the culture in which they function.”).
26 Wittgenstein, L, Philosophical Investigations sections 243–271, Anscombe, G, Hacker, P and Schulte, J (trans) (4 edn, 2009) (arguing for the impossibility of private language, i.e. a language that cannot be learned or translated by anyone other than its creator, on the grounds that it would be incomprehensible even to its creator, as he would not be able to establish meanings for the signs).
27 See Wittgenstein, L, Tractatus Logico-Philosophicus Preface, Pears, D and McGuinness, B (trans) (rev. edn, 1974) : “What we cannot talk about we must pass over in silence”; “The limits of my language mean the limits of my world” (5.6); “We cannot say what we cannot think; so what we cannot think, we cannot say either” (5.61). See also Wittgenstein, Philosophical Investigations, n 26 above, section 42: “the meaning of a word is its use in the language.”
28 See Taylor, C, Modern Social Imaginaries (2004) 23–30. For Taylor, the term describes “the ways people imagine their social existence, how they fit together with others, how things go on between them and their fellows, the expectations that are normally met, and the deeper normative notions and images that underlie these expectations … the social imaginary is that common understanding that makes possible common practices and a widely shared sense of legitimacy” (23). Taylor draws on the influential work of Anderson, B, Imagined Communities (1991). The term “social imaginary” originates in the work of Cornelius Castoriadis (who himself borrowed the term “imaginary” from Lacan). See Castoriadias, C, The Imaginary Institution of Society, Blamey, K (trans) (1987) . On the distinctions among these thinkers, as well as the recent rise in significance of the term “imaginary” as a substitute for “cultural beliefs,” see Strauss, C, “The Imaginary” (2006) 6 Anthropological Theory 322.
29 See, e.g., Ricci v. DeStefano, 557 U.S. 557 (2003) (considering whether Title VII prevented a fire department from invalidating test results that would have promoted only white firefighters). Justice Samuel Alito, concurring, emphasizes the individual achievement of the white firefighters. ibid 596–608. Justice Ruth Bader Ginsburg, dissenting, emphasizes the narrative of historical injustice. ibid 608–644.
30 See, e.g., Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729 (2011). Justice Antonin Scalia, writing for the Court, invalidates a law imposing restrictions on violent video games; for him, the law “abridges the First Amendment rights of young people.” ibid 2741. Justice Clarence Thomas, in a dissenting opinion, recites the history of parental authority: “the history clearly shows a founding generation that believed parents to have complete authority over their minor children.” ibid 2758.
31 In this sense, markets are cultures: outside a shared social imaginary, we could make no sense of what to do or how to understand a market.
32 Cover, R, ‘The Supreme Court, 1982 Term—Foreword: Nomos and Narrative” (1983) 97 Harvard Law Review 4, 40–44. “The jurisgenerative principle by which legal meaning proliferates in all communities never exists in isolation from violence. Interpretation always takes place in the shadow of coercion. And from this fact we may come to recognize a special role for courts. Courts, at least the courts of the state, are characteristically ‘jurispathic.’ It is remarkable that in myth and history the origin of and justification for a court is rarely understood to be the need for law. Rather, it is understood to be the need to suppress law, to choose between two or more laws, to impose upon laws a hierarchy. It is the multiplicity of laws, the fecundity of the jurisgenerative principle, that creates the problem to which the court and the state are the solution” (40).
33 For a similar critique of Cover’s work on the jurispathic character of courts, see Post, R, ‘Who’s Afraid of Jurispathic Courts?: Violence and Reason in Nomos and Narrative’ (2005) 17 Yale Journal of Law and Humanities 9.
34 Schmitt, C, Political Theology: Four Chapters on the Concept of Sovereignty, Schwab, G (trans) (2005) 31–32.
35 The opinions in Planned Parenthood v. Casey, 505 U.S. 833 (1992), demonstrate some of the conflict over judicial role. The plurality opinion, written jointly by Justices O’Connor, Kennedy, and Souter, is unusually forthright in its discussion of the legitimacy of judicial review: “The Court must take care to speak and act in ways that allow people to accept its decision on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation” (865–866). Justice Scalia, writing in dissent, refers to the majority opinion as “a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls ‘reasoned judgment’… which turns out to be nothing but philosophical predilection and moral intuition” (1000). He continues, if “our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school—maybe better” (1000–1001).
36 Propositions and rituals cut off from a whole are signs of individual pathology.
37 Compare Dworkin, in Law’s Empire, n 17 above, 211–214, who describes a “community of principle,” as one that “insists that people are members of a genuine political community only when they accept that their fates are linked in the following strong way: they accept that they are governed by common principles, not just rules hammered out in political compromise. Politics has a different character for such people. It is a theatre of debate about which principles the community should adopt as a system, which view it should take of justice, fairness, and due process” (211). Similarly, I would speak of a community of care founded on common narratives.
39 Compare a leading scholar of Greek and Near Eastern mythology: “There are two main dimensions of myth, corresponding to the well-known linguistic distinction between the ‘connotative’ and ‘denotative’ functions of language: there is a narrative structure … and there is some reference … to phenomena of common reality that are thus articulated, expressed and communicated … In most mythical texts, both dimensions intertwine and influence each other … The narrative structures are based on a very few general human or even pre-human programmes of action, and thus are quite easily understood and encoded in memory, to be reproduced, or re-created, even from incomplete records. … The denotative ‘application’ on the other hand, which turns a tale to myth, is anything but general; it depends on particular situations, which may well be unique. Yet because tales are a means of communication, not private signs, particularisation is limited; there are no private myths. In fact, there are varying levels of generalization in most human aspects of reality; certain societal configurations and problems will recur in similar forms in many places.” Burkert, W, ‘Oriental and Greek Mythology: The Meeting of Parallels’ in Bremmer, J (ed), Interpretations of Greek Mythology (1987) 10, 11–12.
40 Compare the definition of “enemy” in Schmitt, C, The Concept of the Political, Schwab, G (trans) (2007) 27–29: “The friend and enemy concepts are to be understood in their concrete and existential sense, not as metaphors or symbols, not mixed and weakened by economic, moral, and other conceptions … The enemy is not merely a competitor or just any partner of a conflict in general. He is also not the private adversary whom one hates. An enemy exists only when, at least potentially, one fighting collectivity of people confronts a similar collectivity. The enemy is solely the public enemy, because everything that has a relationship to such a collectivity of men, particularly to a whole nation, becomes public by virtue of such a relationship. …”
42 Think, for example, of the narrative of the White House, which in its very structure aligns family and polity. Indeed, it is difficult to think of a single American film that takes up politics without simultaneously taking up the family.
43 Famously represented in Saving Private Ryan, directed by Steven Spielberg (1998; Universal City, CA: DreamWorks, 1999), DVD.
44 Compare Balkin, J, Cultural Software: A Theory of Ideology (1998) 42–72, on “memetic evolution”: “Memes are the building blocks of the cultural software that forms our apparatus of understanding. Memes are spread from person to person by observation and social learning—either face to face or through media of communication like writing, television, or the Internet. Through observation and social learning, people internalize and assimilate skills, beliefs, attitudes, and values, and these become part of their cultural software. In this way, memes are communicated from mind to mind, are adapted into our cultural software, and become a part of us. Culture is a system of inheritance: we inherit our cultural software from the people around us, and we pass it on to those whom we in turn communicate with” (43).
46 Contrast this with the view of Bellah, R, ‘Civil Religion in America’ (1967) 96 Daedalus 1, reprinted in 134 Daedalus 40 (2005). For Bellah, American civil religion “borrowed selectively from the [Christian] religious tradition in such a way that the average American saw no conflict between the two” (50). Bellah’s views are discussed critically in Kahn, P, ‘A Civil Religion on Human Rights?’ in Porsdam, H (ed), Civil Religion, Human Rights and International Relations: Connecting People across Cultures and Traditions (2012) 42–68.
47 The use of foreign sources of law in American jurisprudence has been a contentious issue in several recent cases. See Atkins v. Virginia, 536 U.S. 304 (2002); Lawrence v. Texas, 539 U.S. 558 (2003); Roper v. Simmons, 543 U.S. 551 (2005). The use of foreign sources also generates controversy outside of the Supreme Court. In the last several years, for example, several state legislatures have barred the use of foreign law. See Volokh, E, ‘Foreign Law in American Courts’ (2014) 66 Oklahoma Law Review 219, 219. On this topic, see Calabresi, S, ‘“A Shining City on a Hill”: American Exceptionalism and the Supreme Court’s Practice of Relying on Foreign Law’ (2006) 86 Boston University Law Review 1335.
48 See Kahn, Finding Ourselves at the Movies, n 41 above, 31, 45–46, 183–184, 199 n.4, for a discussion of reasons as compared to causes. “When we explain our actions, we speak of reasons, not causes. If we turn to causes, we imply a failure to take responsibility for the self” (31). Consider, for example, the Declaration of Independence as a statement of reasons for a decision, rather than a description of causes followed by an effect.
49 For further discussion of the temporality of law, see Kahn, P, The Reign of Law: Marbury v. Madison and the Construction of America (1997) 49–100. “Law simultaneously embraces revolution and distances itself from the possibility of revolutionary freedom. Revolution is the actualizing of a freedom that law frames as either already realized, and therefore over, or potential, and therefore appropriate only for a future moment. American constitutionalism is suspended between an inexplicable origin, when the people acted, and the acknowledged possibility of a second coming of the people. … Law’s time is the period between revolutions” (70).
50 Compare the notion of “democracy deficit” in the European Union. See, e.g., Grimm, D, ‘Does Europe Need a Constitution?’ (1995) 1 European Law Journal 282, 297: “What obstructs democracy is accordingly not the lack of cohesion of Union citizens as a people, but their weakly developed collective identity and low capacity for transnational discourse. This certainly means that the European democracy deficit is structurally determined. It can therefore not be removed by institutional reforms in any short term. The achievement of the democratic constitutional State can for the time being be adequately realised only in the national framework” (297). See also Haltern, U, ‘Pathos and Patina: The Failure and Promise of Constitutionalism in the European Imagination’ (2003) 9 European Law Journal 14, 32: “[European] Union texts are not ‘ours.’ They are just texts, empty shells with no roots. Rather than an embodied set of meanings they are seen as a set of ideas without the power to make a claim upon the citizen.”
51 Compare Walzer, M, Exodus and Revolution (1985) 71–98, on covenant and consent. “The covenant introduces into the Exodus story a radical voluntarism that sits uneasily with the account of the original deliverance … This combination of divine willfulness and popular choice, providence and covenant, determinism and freedom is characteristic of Exodus politics and of all later versions of radical and revolutionary politics too” (80–81).
52 This analogy was explored in Levinson, n 9 above, 27–53, where he discusses “Protestant” and “Catholic” ways of interpreting the Constitution.
53 This conflict of the universal (human rights) and the particular (sovereignty) has been at the center of recent debate over the “responsibility to protect” doctrine in international humanitarian law (R2P). See Stahn, C, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ (2007) 101 American Journal of International Law 99; Peters, A, ‘Humanity as the A and Ω of Sovereignty’ (2009) 20 European Journal of International Law 513.
54 See below on realizing the universal through the particular.
56 See Moyn, S, The Last Utopia: Human Rights in History (2010) 176: “Today it seems self-evident that among the major purposes—and perhaps the essential point—of international law is to protect individual human rights. … If that transformation is one of the most striking there is in modern law and legal thought, it is even more surprising that it really began only yesterday. Yet in a few short decades, human rights have occupied the very center of the activities of international lawyers, just as international law itself has taken on a high profile in contemporary moral consciousness.”
57 See the 1995 symposium, for example, for which contributors discussed their least favorite provisions: ‘Constitutional Stupidities: A Symposium’ (1995) 12 Constitutional Commentary 139.
58 The abolitionists in the years leading up to the Civil War demonstrate the potential for crises of constitutional faith when the order is perceived as radically unjust. See, e.g., the “Eleventh Annual Meeting of the Massachusetts Anti-Slavery Society’ (February 3, 1843) 5 The Liberator (Boston) 19. A resolution was first proposed “that no abolitionist can consistently demand less than a dissolution of the union between northern freedom and southern slavery, as essential to the preservation of the one and the abolition of another.” William Lloyd Garrison suggested the resolution be amended: “That the compact which exists between the North and the South is ‘a covenant with death, and an agreement with hell’—involving both parties in atrocious criminality; and should be immediately annulled.” The resolution was adopted by the Society, and subsequently became a rallying cry for Garrison. See further Kammen, M, A Machine That Would Go of Itself (1986) 75–116, for a discussion of the various views of the Constitution in the years leading up to the Civil War. See also Levinson, n 9 above, 65–68, 74–80; Balkin, J M, Constitutional Redemption: Political Faith in an Unjust World (2011) 111–123; Balkin, J, ‘Agreements with Hell and Other Objects of Our Faith’ (1997) 65 Fordham Law Review 1703, for further discussion of the abolitionists’ negotiation of this point from the perspective of constitutional theory.
59 Even the sacrifice of the Confederate soldiers can make a claim. See, e.g., Calvin Coolidge, “Address at the Confederate Memorial at Arlington National Cemetery: ‘The United Nation,’” May 25, 1924, available at http://www.presidency.ucsb.edu/ws/index.php?pid=24187. “On this day we pause in memory of those who made their sacrifice in one way. In a few days we shall pause again in memory of those who made their sacrifice in another way. They were all Americans, all contending for what they believed were their rights. On many a battle field they sleep side by side. Here, in a place set aside for the resting place of those who have performed military duty, both make a final bivouac. But their country lives. The bitterness of conflict is passed. Time has softened it; discretion has changed it. Your country respects you for cherishing the memory of those who wore the gray. You respect others who cherish the memory of those who wore the blue. In that mutual respect may there be a firmer friendship, a stronger and more glorious Union.” Of course, Coolidge was hardly speaking for all Americans, and certainly not for black Americans.
60 Compare Plato’s Euthyphro, 12a: “Is the pious being loved by the gods because it is pious, or is it pious because it is being loved by the gods?” (in Grube, G, (ed and trans), Plato: Five Dialogues (2 edn, 2002) 12).
62 Thus, the threat of the terrorist with a nuclear bomb.
63 In Agamben’s work the person—homo sacer—who cannot be sacrificed stands outside the political body. Agamben, G, Homo Sacer: Sovereign Power and Bare Life, Heller-Roazen, D (trans) (1998) .
64 Contrast Dworkin, R, A Matter of Principle (1985) 119–145, who poses and discusses the question “Is there really no right answer in hard cases?” See also Bix, B, Law, Language, and Legal Determinacy (1993) 77–132, for a detailed discussion of the evolution of the right answer thesis in Dworkin’s work, and an ultimately critical analysis of it.
65 See Kahn, n 49 above, 115 (“A well-crafted opinion aims to speak in the voice of ‘we the people.’”).