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Published online by Cambridge University Press: 24 April 2015
Why do nine Supreme Court justices have the power to overturn the choices of a majority in a democratic nation? This question, known as the counter-majoritarian problem, has driven constitutional theory for the past forty years. Likewise, it is the question at the heart of Jed Rubenfeld's Freedom and Time, A Theory of Constitutional Self-Government. In responding to this question, Rubenfeld argues that freedom and democracy require temporal extension, precluding either freedom or democracy from being reduced to the immediately present majority will of a people. Therefore, Rubenfeld concludes that the checks on the immediate will of the people at the heart of constitutional judicial review are not only democratically permissible but a necessity.
1. Rubenfeld, Jed, Freedom and Time, A Theory of Constitutional Self-Government (Yale U. Press 2001)CrossRefGoogle Scholar.
2. In other words, following Wittgenstein I do not expect that I can defend the choice of Wittgenstein in any universally compelling manner, nor do I feel the obligation to begin every argument from a position with which any “rational” person would agree. I take up the conversation with Rubenfeld from the place that he and I begin. That the differences between Popper and Wittgenstein are important is not thereby denied, but every conversation must be begun from a set of pre-existing positions. What I hope to do, as set forth in more detail in note 9, is make the most of the common ground I can find with Rubenfeld to sustain a conversation.
3. For an introduction to Popper's and Wittgenstein's animated engagement, see Edmonds, David & Eidinow, John, Wittgenstein's Poker: The Story of a Ten-Minute Argument Between Two Great Philosophers (Ecco 2001)Google Scholar.
4. In other words, Popper's hopes for the open society of democracy, rationalism, and, most importantly, individualism are not my hopes. See generally Popper, Karl R., The Open Society and its Enemies: Volume 1: The Spell of Plato ch. 10 (Princeton U. Press 1963)Google Scholar. While not developed in this essay, I would argue that Popper's distinction between closed versus open societies is a false dichotomy. So called “closed societies,” such as the church, regularly exhibit self-criticism, growth, and change.
5. See Powell, H. Jefferson, A Community Built on Words: The Constitution in History and Politics (U. Chi. Press 2002)CrossRefGoogle Scholar.
6. While making this connection is not the goal of, or essential to, the argument, it is a noteworthy connection not yet deeply explored. One might consider the various readers of Wittgenstein and Thomas Aquinas, such as David Burrell, Victor Prellor, and Herbert McCabe to begin to explore this relationship. One might also consider the connections between Aristotle and Wittgenstein implicit in Stanley Hauerwas's work. The role of Aristotle in Hauerwas's work is well-known. The importance of Wittgenstein to that work is perhaps less obvious. For an introduction to the latter connections, see Kallenberg, Brad J., Ethics as Grammar: Changing the Postmodern Subject (U. Notre Dame Press 2001)Google Scholar.
7. See e.g. McClendon, James Wm., Jr. & Murphy, Nancy, Witness: Systematic Theology: Volume 3, at 227–270 (Abingdon Press 2000)Google Scholar.
8. For a good introduction to Wittgenstein's biography, see Monk, Ray, Ludwig Wittgenstein: The Duty of Genius (Penguin Books 1990)Google Scholar. Chapter 6, in particular, deals with Wittgenstein's World War I “conversion” to Tolstoy. See id. at 105-136.
9. The approach I am attempting to follow here is the one set forth by Yoder, John Howard in his essay, “But We Do See Jesus”: The Particularity of Incarnation and the Universality of Truth, in The Priestly Kingdom: Social Ethics as Gospel 46 (U. Notre Dame Press 1984)Google Scholar. In that essay, Yoder denies the universal validity of any one particular means of translating Christianity in terms accessible to the wider society; nonetheless, he argues for an ad hoc project of attempting to find various means to begin and sustain conversation on the fringes with other traditions. This project is undergirded theologically in Christ's lordship, which suggests that while no means of cross-tradition communication will always be effective (i.e., incommensurability is a real and important problem), likewise Christ's lordship of the whole universe means that Christians should expect to find common ground for discourse with the wider world.
10. Rubenfeld, supra n. 1, at 7.
11. In rejecting this modern account of the self and freedom, Rubenfeld traces the historical construction of the self as purely present. Beginning with Thomas Jefferson, who suggested that the earth “belongs to the living,” Rubenfeld argues that Jefferson's “demand for government of the present, by the present, for the present,” was “the discovery—the self-discovery—of modernity itself.” Id. at 23. Rubenfeld then locates continuing evidence of this presentist account of the self in rational-actor economics, Freudian psychology, and modernist art forms. Further, Rubenfeld argues that the cult of the young that has arisen in modernity with its leading virtues—“uncommittedness” and a forgetting of the past—and its leading saint—Friedrich Nietzsche—is the natural outworking of this presentist agenda. Rubenfeld, quoting Nietzsche, suggests, “Happiness depends on ‘forgetting the past,’ on ‘feeling ‘unhistorically,’ on leaping into ‘the moment.’ ‘One who cannot leave himself behind on the threshold of the moment and forget the past… will never know what happiness is.’” Id. at 39 (quoting Nietzsche, Friedrich, The Use and Abuse of History 14-15, 75, 77 (Collins, Adrian trans., Liberal Arts Press 1949)Google Scholar). Rubenfeld also notes this movement entails the rejection of the eschatologically formed world of Christianity. See Rubenfeld, supra n. 1, at 33.
12. See MacIntyre, Alasdair, After Virtue: A Study in Moral Theory 54–55 (2d ed., U. Notre Dame Press 1984)Google Scholar. While not subjecting the Enlightenment per se to the withering critique to which MacIntyre subjects it, Rubenfeld nonetheless notes that it may be one of the factors in the rise of presentism. See Rubenfeld, supra n. 1, at 42.
13. Rubenfeld, supra n. 1, at 41.
14. See id. at 37:
[A]s modernity unfolds into an “age,” the age of the new cannot be what it wants to be because the new is no longer new when it is aged in this way. Constantly desiring to have the new, to be new, modernity inescapably betrays its age, its repetitiveness, its historical determinedness.
15. Id. at 97. Interestingly, Rubenfeld attempts to reconfigure debates surrounding what distinguishes humans from other animals by suggesting that writing (in lieu of speech) is the determinative distinction. See id. at 141. For a helpful introduction to these issues, see MacIntyre, Alasdair, Dependent Rational Animals: Why Human Beings Need the Virtues (Open Ct. Publg. Co. 1999)Google Scholar.
16. Id. at 117.
17. See id. at 129:
Commitment appeals to passion as against the seduction of rationality—of everyday, cost-benefit, preference-maximizing rationality. Commitments are always made feelingly. The feeling involved need not be love or hate, and it need not be a distinctly moral feeling. But feeling there must be, for in all commitments the self throws itself into an enduring engagement with an object that exists at least in part outside itself, and it is impossible for a self to be so engaged with an object without feeling.
Rubenfeld borders on suggesting that there is a fundamental distinction between the passions and reason. A generous reading of certain passages, however, mitigates against that tendency. See e.g. id. at 115 (“[Passionate] [c]ommitments are rational, but they cannot be fully explained by reference to rationality”).
18. Rubenfeld describes such paradoxes as such,
If, say, candidates A, B, and C are ranked {A, B, C} by a third of the voters, {B, C, A} by another third and {C, A, B} by the final third, it will be the case that a majority would prefer A over B, B over C, but C over A. In other words, when Condorcet paradoxes exist—and it is supposed that they exist, or may exist, very often—“majority will” is irrational…. Another way to put the same problem: no matter which of the three candidates is elected by “majority will,” it will be the case that this same will would prefer someone else.
Id. at 105. Rubenfeld suggests that such paradoxes may also apply to individuals with competing rational ends.
19. Id. at 107.
20. Id. at 139-140. The apparent circularity of Rubenfeld's argument i.e., the answer to the problem of the unity of the self over time, is understanding the self in time is, as I understand it, a non-pernicious circle. Rubenfeld suggests, implicitly, that we are being seduced by the bewitchment of philosophy here, that is, he is pointing to the manner in which we embody forms of life that imply a continuity of the subject across time against the seduction of Derek Parfit's philosophy, which would make the unity of the self over time problematic. Rubenfeld makes an explicit argument as such regarding popularity:
The aim of this chapter is to offer not a comprehensive theory of popularity but only a rough working account. In defense of this modest ambition, observe that we lack anything like an agreed-upon comprehensive theory of personhood—of what it means to be a person—and yet this lack does not keep most of us from believing that persons exist or from feeling that we have a rough good sense of what they are. To come to the same good sense with respect to peoples would be a considerable advance.
Id. at 145.
21. Id. at 135.
22. Id. at 137.
23. Id. at 140-141.
24. See Aristotle, , Nicomachean Ethics bk. I, ¶ 9, 1100a3-10, p. 22–23 (Ostwald, Martin trans., MacMillian 1962)Google Scholar:
Happiness, as we have said, requires completeness in virtue as well as a complete lifetime. Many changes and all kinds of contingencies befall a man in the course of his life, and it is possible that the most prosperous man will encounter great misfortune in his old age, as the Trojan legends tell about Priam. When a man has met a fate such as his and has come to a wretched end, no one calls him happy.
Aristotle's account is more complicated than this quote belies, insofar as he goes on to suggest that one rightly formed in the virtues has a hedge against the instability of misfortunes that may befall him. Nonetheless, he concludes that good fortune is required for supreme happiness and extreme misfortune can tear happiness away from even the most virtuous. See id. at bk. I, ¶ 10, 1101a6-16, 26.
25. Rubenfeld, supra n. 1, at 124.
26. Augustine, Saint, Confessions bk. VIII, § 5, 164 (Pine-Coffin, R.S. trans., Penguin Books 1961)Google Scholar. Augustine also notes that the multiplicity of his carnal desires leads to the fragmentation of the self. See e.g. id. at bk. III, § 3, 57 (“I exhausted myself in depravity, in the pursuit of an unholy curiosity.”) id. at bk. V, § 10, 103 (“[M]y own impiety had divided me against myself”).
27. Rubenfeld, supra n. 1, at 126-127.
28. In addition, Augustine finds the answer to dispersion, not in the person's commitments, but in the grace of God:
There can be no hope for me except in your great mercy. Give me the grace to do as you command, and command me to do what you will!…. And, as we are told, when I knew that no man can be master of himself, except of God's bounty, I was wise enough already to know whence the gift came. Truly it is by continence that we are made as one and regain that unity of self which we lost by falling apart in the search for a variety of pleasures.
Augustine, supra n. 26, at bk. X, ¶ 29.
29. Max Weber noted as much, suggesting that the market is the most abstract and impersonal form of human interaction insofar as market behavior is the pursuit of a commodity without regard to the particularity of the other that enters into the exchange. Weber bluntly comments, “Such absolute depersonalization is contrary to all the elementary forms of human relationship.” Max Weber on Law in Economy and Society 193 (Rheinstein, Max ed., Shils, Edward & Rheinstein, Max trans., Harv. U. Press 1954)Google Scholar. This theme, though not explicitly pursued by Rubenfeld, is consistent with his broader critique of presentism:
One especially far-reaching expression of the demand to live in the present can be found in modern economics. The freedom to gratify present preferences here becomes the primary term in understanding rationality, individual liberty, and indeed the very function of the individual in society. “The individual serves,” as Galbraith puts it, ‘“not be supplying,” and not by “saving[],” but “by consuming.” Leaving behind visions of man as maker or citizen or dreamer, we now have this: man as consumer.
Rubenfeld, supra n. 1, at 5; see also id. at 27-28.
30. One insightful reviewer wondered whether this essay would benefit from an extended discussion of what it means to be a “people.” This comment is particularly important. As I argue below, much turns on Rubenfeld's account of a “people.” Further, this idea has a longer intellectual history than told in either Rubenfeld's work or my response. What I attempt to do in the next section is to state in a paragraph my concerns generally with strong and weak accounts, such as Rubenfeld's, of a “Volk.” In the end, the former concerns turn on the problem for Christians of necessarily not fitting in within any people. My general approach, however, is to follow Yoder in locating Jeremiah's image of resident aliens as the determinative one for the church within the nation and the people. See Yoder, John Howard, “See How They Go with Their Face to the Sun,” in For the Nations: Essays Evangelical and Public 51 (William B. Eerdmans Publg. Co. 1997)Google Scholar. Following this example means that the church must always be worried about any attempts to ground a national unity or spirit. However, my concerns in regards to the latter weak accounts of a people are that they are naive in thinking that living geographically near one another is enough to form a people. With all this said, I am keenly aware that the reviewer's comment is an important one. One might have written an entire engagement of Rubenfeld around this one question; such an essay would be well worth while and fruitful. However, it is not the primary tack I have taken in trying to work through Rubenfeld's argument.
31. Rubenfeld, supra n. 1, at 99.
32. See e.g. Stout, Jeffrey, Ethics After Babel: The Languages of Morals and Their Discontents 120 (Beacon Press 1988)Google Scholar:
None of us starts from scratch in moral reasoning…. We begin already immersed in the assumptions and precedents of a tradition, whether religious or secular, and we revise these assumptions and set new precedents as we learn more about ourselves and our world. Our starting point is not so much arbitrary as inescapable: we are who we are, the heirs of this tradition as opposed to that one, born into one epoch rather than another, our intuitions shaped by the grammar of our native tongue.
33. I am not suggesting here that commitments or theory do not matter. See e.g. Yoder, John Howard, The Scholarship of Thomas L. Shaffer: A Retrospective and Response, 10 J.L. & Relig. 331, 332 (1993-1994)Google Scholar (“My beginning assumption (1) is that rather than replacing ‘principles and propositions’ as the stuff of moral discourse… stories rather ‘work’ in a complex dialectic with them. Each realm tests, illuminates, and validates the other.”) However, I am suggesting that commitments or theory are not enough.
34. Hauerwas, Stanley, The Peaceable Kingdom: A Primer in Christian Ethics 8–9 (U. Notre Dame Press 1983)Google Scholar:
This attempt to avoid our history… results in the lack of the self-sufficiency to claim our lives as our own. For as we look back on our lives, many of the decisions we thought we were making freely, seem now to have been more determined than we had realized. We say: “If I only knew then what I know now.” Using this as a means to claim nonresponsibility for our past, we imagine that next time we will really act “freely.” As a result we tend to think the moral life and ethical reflection are concerned with prospective decisions and the securing of the conditions necessary to insure that those “decisions” will be free. We ignore the fact that the more important moral stance is retrospective, because it is in remembering and accepting that we learn to claim our lives as our own—including those decisions that in retrospect were less than free. Ironically, my freedom turns out to depend on my ability to make my own that which I did not do with “free choice” but which I cannot do without. For what we are, our sense of ourselves, rests as much on what we have suffered as what we have done.
35. McCabe, Herbert, What is Ethics All About? 28 (Corpus Books 1969)Google Scholar.
36. See generally Shuman, Joel James, The Body of Compassion: Ethics, Medicine and the Church (Westview Press 1999)Google Scholar. Shuman compares Owen Flanagan's abstract discussion of “narrative connectedness” in human agency to that of MacIntyre, concluding,
MacIntyre, it seems to me, makes an important point that Flanagan does not, which is that the particular narratives within which I locate my life make a great deal of difference for whether my life can be characterized as morally significant. For Flanagan, what matters is that I can conceive of my life as taking the form of a story that means something to me. He believes, in other words, that it is possible for one to choose a narrative that helps make sense of one's life. I follow MacIntyre in disagreeing with this assumption, in fact, our lives make sense because we find ourselves made part of the stories of others who are on a quest to reach a particular moral telos.
Id. at 118.
37. A second contrast between autobiography and future commitments is also noteworthy. Autobiography is narrative, and narrative is messy. Histories do not fit together nicely, but contain the space for not only the best of our lives, but the moments in which we have failed to live up to our commitments in not just small ways but in tragic ways that can never be undone. And it is the messiness of this narrative space, this sustained memory of failure, which is named sin, that provides the resources for self or national critique as well as other critical skills of moral discernment.
38. Wittgenstein, Ludwig, Philosophical Investigations 223 (3d ed., Anscombe, G.E.M. trans., MacMillian Co. 1958)Google Scholar.
39. Id.
40. MacIntyre notes that much moral philosophy errs in this manner. See MacIntyre, supra n. 15, at 81-82.
41. See Aristotle, supra n. 24, at bk. II, ¶ 1, 1103a30-1103b2, 1103b21-25, 34-34 (quoted below) & bk. X, ¶ 9, 1179b20-1180a2, 296.
42. I am thinking here of something like the comment that Tom Shaffer points to in regard to Justice Louis Brandeis. Shaffer relates a famous response of President Woodrow Wilson's to the suggestion that it was a pity that a man as great as Brandeis was a Jew. Wilson responded, “But he would not be Mr. Brandeis if he were not a Jew.” Shaffer, Thomas L., American Legal Ethics: Text, Readings, and Discussion Topics 253 (Matthew Bender 1985)Google Scholar.
43. Rubenfeld, supra n. 1, at 128 (emphasis added).
44. To put this in a more determinatively theological manner, Christians become new and different persons through God's grace mediated to them through the church in which they learn new languages, stories, and practices that re-shape their lives.
45. For example, in addressing the ability to rewrite commitments, Rubenfeld notes,
Nor does the continuing possibility of rewriting one's commitments slip in at the last moment the picture of an empty, unfettered, undetermined I engaging in “self-determination.” Commitmentarian freedom is not a freedom of self-definition or self-narration. It recognizes that our subjectivity is always already far too deeply formed to indulge in fantasies of self-creation. The self that reexamines, repudiates, and rewrites its commitments is not an empty subject; it is, inescapably, a thing made by the histories in which it lives and, in part, by the very commitments it is called on to reexamine. Commitmentarian freedom holds only that within the forces, the histories, and the limits that inscribe our positions on earth, we nevertheless have the freedom, if we are fortunate, to give and re-give purposes to our lives over time.
Rubenfeld, supra n. 1, at 100-101.
Further, Rubenfeld seeks to distance the idea of choosing to accept or reject the historically determined self from any one moment:
Recognizing temporal extension in the I dissolves the conflict between self-knowledge and autonomy. For if “the being of what we are is first of all inheritance,” it is also—and also first of all—will: not in the sense of a present mental state, which would ideally be given voice and effect in the here and now, but in the testamentary sense of that word, the sense of projecting one's governance into the future by making provision for the future. We constantly devise; we will ourselves to and into the future. The temporally extended I is not unfettered, and it is therefore able to know itself in its real particularity, but neither is it consigned to being what it is. Temporality roots the I in a historically determined life-world, but it also ensures that the I can never be defined by reference to its position in the world at any particular time. Its identity is infinite with the limits of the possibilities open to it in its actual temporal trajectory.
Id. at 10.
46. Id. at 9; see also id. at 97-98.
47. Id. at 9 (footnote omitted).
48. Id. at 142-143.
49. Id. at 127.
50. Id. at 97.
51. See supra n. 11.
52. Aristotle suggests:
The virtues… we acquire by first having put them into action, and the same is also true of the arts. For the things which we have to learn before we can do them we learn by doing: men become builders by building houses, and harpists by playing the harp. Similarly, we become just by the practice of just actions, self-controlled by exercising self-control, and courageous by performing acts of courage.
In a word, characteristics develop from corresponding activities. For that reason, we must see to it that our activities are of a certain kind, since any variations in them will be reflected in our characteristics. Hence it is no small matter whether one habit or another is inculcated in us from early childhood; on the contrary, it makes a considerable difference, or, rather, all the difference.
Aristotle, supra n. 24, at bk. II, ¶ 1, 1103a30-1103b2 & 1103b21-25, 34-35 (footnotes omitted).
Again, Aristotle's account is more complicated than this isolated quotation might imply. Aristotle goes on to argue that right action, though required by virtue and the means to attaining virtue, does not constitute virtuous action in totality; rather, the person must perform the right act, choosing it for its own sake, and pursuant to a firm and unchangeable character. See id. at bk. II, ¶ 4, 1105a28-35, 39.
53. See MacIntyre, Alasdair, Moral Philosophy: What's Next, in Revisions: Changing Perspectives in Moral Philosophy 12–13 (Hauerwas, Stanley & MacIntyre, Alasdair eds., U. Notre Dame Press 1983)Google Scholar regarding, for example, the manner in which description itself bears moral content.
54. Rubenfeld will later suggest that it is fortuitous that a people have judges that might reason for them about their constitutional commitments in a manner insulated from the pull of momentary reason. See Rubenfeld, supra n. 1, at 172. This is, however, more than fortuitous but essential to securing any form of continuity in rule following.
55. Robert Cover, in a comment that applies to both Rubenfeld's claims regarding persons and nations, notes the determinative character of the interpretative narratives that accompany legal precepts:
Authoritative precept may be national in character—or at least the authoritative text of the authoritative precepts may be. But the meaning of such text is always “essentially contested,” in the degree to which this meaning is related to diverse and divergent narrative traditions within the nation.
Cover, Robert M., Nomos and Narrative, 97 Harv. L. Rev. 4, 17 (1983)Google Scholar (footnote omitted).
56. The position I am tracing here is simply a restatement of that found in Yoder, John Howard, The Hermeneutics of Peoplehood: A Protestant Perspective, in The Priestly Kingdom: Social Ethics as Gospel 15 (U. Notre Dame Press 1984)Google Scholar.
57. Wittgenstein, supra n. 38, at 92, nn. 258, 260); see also id. at 93-94, nn. 265-268), 100, nn. 292-293.
58. Williams, Rowan, Interiority and Epiphany: A Reading in New Testament Ethics, in On Christian Theology 239, 240 (Blackwell Publg. 2000)Google Scholar.
59. See id. at 243 (“Thus I do not emerge into selfhood without concrete otherness; I do not discover my humanity in the absence of frustration, the resistance of the world to my will (if I can even be said to have a ‘will’ in the absence of the linguistic specificity that is developed in negotiation”)); see also Taylor, Charles, Sources of the Self: The Making of the Modern Identity 35 (Harv. U. Press 1989)Google Scholar (“A language only exists and is maintained within a language community. And this indicates another crucial feature of a self. One is a self only among other selves. A self can never be described without reference to those who surround it.”).
60. Williams, supra n. 58, at 240.
61. At the end of book II, Aristotle notes the difficulties of self-judgment. See Aristotle, supra n. 24, at bk. II, ¶ 9, 1109b1-11, 50-51. In response to Rubenfeld's earlier concerns regarding the identity of the self over time, MacIntyre also notes the manner in which friendship enables us to know ourselves and assures us that we are the same person through time. See MacIntyre, supra n. 15, at 94-95.
62. See Williams, supra n. 58, at 258 (footnote omitted):
[W]e understand the truth of Christian God in the very apprehension of our own misapprehensions; our spiritual conformation to the life of the trinitarian God involves, among a good many other things, a scepticism, both relentless and unanxious, about all claims to successful performance in our life and our discourse.
63. There is no better description of the difficulties of self-deception in the moral life than the Augustine of Book X of the Confessions. See Augustine, supra n. 26, at bk. X, 207-252.
64. Rubenfeld understands this point insofar as it relates to constitutions, for he emphasizes the need for judicial interpretation and paradigm cases to fill out constitutional commitments:
Constitutionalism as democracy begins with the memorialization of foundational commitments, but it requires more. It requires interpretation. As we have seen, all commitmentarian endeavor includes a commitment to an activity of ongoing interpretation. The cardinal rule of this interpretative task is that interpretation of commitments cannot be permitted to collapse into governance by the self s present will.
In saying what commitments require, we are obliged not to rationalize our way, under the guise of “interpretation,” to whatever we wanted to do in the first place.
But we all know what it is to be judge in one's own case. This is why individual morality is so consistently feeble. We all imagine ourselves committed to doing right, or at least to doing no wrong, and we all find ways to tell ourselves that what we want to do here and now conforms to this commitment. Who among us tells himself, at the moment of doing something really wrong, as opposed to a trivial indulgence, that he does wrong? Our tendency to rationalize, our capacity for self-deception, our general lack of character all conspire to make us highly unreliable interpreters of our own commitments.
In this regard, constitutional commitments have an advantage over individual commitments.
Rubenfeld, supra n. 1, at 172; see also id. at 180. However, having so argued, he fails to take up these concerns in regards to the committing self.
65. Id. at 47.
66. Id. at 49.
67. See Bickel, Alexander M., The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Bobbs-Merrill 1962)Google Scholar.
68. The four responses Rubenfeld names are (1) the voice of the people present, which argues that constitutional checks should be limited to those that have the present backing of the people and results in “proceduralist” theories of constitutional interpretation, (2) the voice of the people past, which grounds a defense of the constitution in the original will of the people and the tacit consent to that act by the present people, (3) the voice of the people predicted, which looks forward to the future will of the people and suggests that the Supreme Court's interpretative task is predicting that future will, and (4) the flight from temporality, which seeks to simply ignore the counter-majoritarian difficulty, defending constitutional principles via some account of natural law or rights as taken up by liberalism and most distinctly embodied in the Free Speech Clause of the First Amendment. See Rubenfeld, supra n. 1, at 56-70.
69. Rubenfeld, supra n. 1, at 71. This suggestion is not mere academic conjecture as Rawls and friends submitted an amicus brief in the 1997 euthanasia cases decided by the Supreme Court. See Br. for Dworkin, Ronald, Nagel, Thomas, Nozick, Robert, Rawls, John, Scanlon, Thomas, and Thomson, Judith Jarvis as Amici Curiae in Support of Respondents, Washington v. Glucksberg, 117 S. Ct. 2258 (1997)Google Scholar and Vacco v. Quill, 117 S. Ct. 2293 (1997).
70. Rubenfeld, supra n. 1, at 85.
71. Rubenfeld quotes Jacques Derrida in this regard: “the being of what we are is first of all inheritance, whether we like it or know it or not.” Id. at 80 (quoting Derrida, Jacques, Spectres of Marx: The State of the Debt, The Work of Mourning, and the New International 54 (Kamuf, Peggy trans., Routledge 1994)Google Scholar. While Rubenfeld makes use of Derrida in this limited sense, he does not take up nor respond to the more challenging portions of Derrida's work in regards to his own work, namely, Derrida's suggestion that “[t]he sign represents the present in its absence…. The sign, in this sense, is deferred presence.” Derrida, Jacques, Différance, in A Derrida Reader: Between the Blinds 61, 61 (Kamuf, Peggy ed. & trans, Colum. U. Press 1991)Google Scholar. In this regard, Derrida argues that writing is itself an attempt to capture the present and extend it into the future.
72. Rubenfeld, supra n. 1, at 153.
73. Id. at 153. This understanding of a people entails four further conclusions: (1) the grounding of a means for temporal extension; (2) the accounting for of multiple political-legal orders in a particular place; (3) the acknowledgment that peoples are formed by bonds of violence that have forced them together; and (4) the rejection of the will (individual or collective) as formative of the political subject in lieu of “any being with the capacity to give itself a commitment.” Id. at 156.
74. Id. at 158-159.
75. See id. at 168:
American written constitutionalism holds that a people achieves self-government not by conforming governance to the authoritative democratic will at any given time, but by laying down and holding itself to its own democratically authored foundational commitments over time.
Rubenfeld claims this was the founder's intent, see id. at 167, but disclaims that the founder's intent is necessarily relevant.
76. Id. at 168. One might press here as to whether changes as dramatic as those suggested by Rubenfeld to an understanding of “democracy” can even claim a family resemblance to what has commonly been understood as “democracy.” Consider, in this regard, McCabe's comment:
The meaning of the word may develop in various unexpected and indeed unpredictable ways but after any such development we must subsequently be able to find a continuity of meaning. I think we have an example of non-continuity in the case of the word “democracy.” This word has probably lost almost all its meaning. It is not that we find new and unexpected forms of democracy—as in Tanzania, for example—which are quite different from the British form, it is just that if you call, say, South Vietnam a democracy, you are plainly doing so out of politeness rather than because you detect some continuity with the meaning of the word in other contexts.
McCabe, supra n. 35, at 23.
77. See generally Rubenfeld, supra n. 1, at 93.
78. Rubenfeld, Jed, Reading the Constitution as Spoken, 104 Yale L.J. 1119, 1147 (1995)CrossRefGoogle Scholar.
79. Rubenfeld, supra n. 1, at 12.
80. I have contended elsewhere in regards to Rubenfeld's earlier article that this account of a people is unsatisfactory in grounding American constitutionalism. See Church, Richard P., The Breakdown of the Constitutional Tradition: MacIntyrian and Theological Responses, 14 J.L. & Relig. 351 (1999-2000)CrossRefGoogle Scholar. In this work, Rubenfeld himself hints at the difficulties of naming a people without a telos, “Our politics grows ever more insipid as it grows ever more attentive to what we want, or say we want, here and now. We have today a productive capacity enabling us to realize our dreams to an extent beyond die wildest dreams of diose who lived before us—if only we had dreams!” Rubenfeld, supra n. 1, at 16.
81. See Wittgenstein, supra n. 36, at 11:
23. But how many kinds of sentences are there? Say assertion, question, and command?—There are countless kinds: countless different kinds of use of what we call “symbols,” “words,” “sentences.” And this multiplicity is not something fixed, given once for all; but new types of language, new language-games, as we may say, come into existence, and others become obsolete and get forgotten. (We can get a rough picture of this from the changes in mathematics.)
Here die term “language-game” is meant to bring into prominence the fact that the speaking of language is part of an activity, or of a form of life.
82. Id. at 88.
83. Again, Rubenfeld highlights certain concerns along these lines, both acknowledging the necessity of some critical mass of liked-minded citizens and institutions to sustain commitments and noting that one interesting consequence of his overall argument is that the nation-building projects which are currently in vogue and the constitutional writing projects associated with them are inherently suspect. See Rubenfeld, supra n. 1, at 13, 156. Nonetheless, Rubenfeld suggests in response to the types of criticism that are raised in this review that the problems of a common history or telos are only evident in a speech-modeled democracy in which a common will in the present is required. See id. at 150. But it is not at all clear, in light of the importance of interpretation, how some set of common understandings and institutions surrounding a commitment are not required. For while the myth of a national will is a dangerous and reductive one, it is just as deceptive to believe that some form of national commitments exist if such commitments are in no more than words alone. In this regard, see the comment from Robert Cover, supra, n. 55.
84. Kallenberg, supra n. 6, at 120.
85. Max Weber, for example, notes that the modem nation-state is nothing more than an arbitrary territory, the availability of physical force for its domination, and communal action regulating interrelations in that community. But as Weber has also noted, the objects of violence have often been and, in fact, primarily are persons within the community who are forced to participate in that community. Further, the coercion of the community entails and includes everything up to and including death in the name of the community's interests, be that death in the community's defense or as a designated enemy of the community. See Weber, supra n. 29, at 338-340.
86. Rubenfeld clearly thinks otherwise. He suggests that by extending an account of democratic inclusion this amnesia is not present:
[T]he claim [that at some point the construction of a nation must involve violence] has become once again a version of the infinite regress, and this regress proves nothing. It can show at most that a people must initially be brought into being by force or by accident. Such a people, however, even if brought into being by powers outside its control, may yet be the author of its own foundational commitments, including its own equality principles, over time. A person too is violently brought into the world, thorough through little or no agency of his own, but this person may still, much later, be the author of his commitments.
Rubenfeld, supra n. 1, at 83. How such past acts of violence, of inclusion or exclusion, are cleansed by time is not clear. Not only past formative violence, which Rubenfeld is willing to discount, but the continuing amnesia regarding that violence against those violently taken in and now violently sustained in the nation, must be addressed.
87. My arguments above regarding the fundamentally embedded nature of the self may appear to run counter to my concerns for voluntarity in this section. A plausible distinction can be drawn, however, between autonomous decisions and voluntary decisions. Autonomous decisions are a myth that must simply be rejected. Voluntary and non-voluntary, or non-coerced and coerced decisions that a person or a people might make for themselves can, however, be distinguished. These distinctions must be worked out in actual cases and ultimately turn on the physical, rhetorical, and emotional means by which the other is engaged. There are modes of achieving consensus that involve much listening and speaking, long patience, and a rightly formed humility, yet even such modes of persuasion are but gifts inherited from the communities that have and continue to shape the self. Thus, it seems essential to me to press the manner in which the autonomous self is simply the self of mythology, but with that said, it is equally important to press on American amnesia regarding the violence with which the nation was formed, has narrated itself, and continues to narrate itself.
88. Powell, supra n. 5, at 191.
89. See Rubenfeld, supra n. 1, at 188:
[T]he full implications of a commitment are never known in advance. If I have a child, I inscribe myself into a complex network of commitments. When I try to interpret what these commitments require of me, it does little good if I refer to what I had in mind at the “founding” moment. For better or worse, I have to be prepared to discover, in the course of living out these commitments, that they require more than I might have originally supposed. Commitments have to be filled in and filled out through an on-going task of interpretation. But in this ongoing interpretive process by which we live out our commitments, it is critical that some basic interpretation be given a chance to establish itself, to become part of our practices. Otherwise the commitments are never made real.
90. Brown v. Bd. of Educ., 347 U.S. 483 (1954)Google Scholar.
91. Rubenfeld, supra n. 1, at 194.
92. Rubenfeld argues that the commitments embodied in the 14th Amendment make clear that discrimination against women is prohibited and that the current “cost-benefit” strict scrutiny due process analysis of Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)Google Scholar, is not in line with the foundational commitment diat all persons are to be treated equally under the law. In the last chapter, Rubenfeld argues that American constitutional law implicitly recognizes a sphere in which law is not to be present. Rubenfeld suggest that this space is defined not by what the community can prohibit a person from doing, but by what the community can not prescribe a person to do. Accordingly, Rubenfeld contends that Roe v. Wade, 410 U.S. 113 (1973)Google Scholar, does more than simply prohibit abortion, but prohibits die state from scripting a woman's life insofar as the bearing of a child is a writing of the woman's life and commitments.
93. Much of my negative response may simply belie the disappointment that so grand a scheme would lead to something as mundane as American liberalism, as Rubenfeld's entire account of personhood and American democracy now appear to be in defense of traditional liberal court decisions in such a way that those decisions are never really put into serious question.
94. In regard to the equal protection clause, and particularly affirmative action, Rubenfeld first distinguishes between “motives” and “purposes,” suggesting while the former must be explicit, the latter “may be unconscious.” Rubenfeld, supra n. 1, at 208. Relying on this distinction, Rubenfeld concludes that the 14th Amendment may apply to laws enacted without an invidious motive, but with a purposive discriminatory impact. However, just three pages later, Rubenfeld argues that affirmative action's opponents may not rely on arguments based on affirmative action's harmful consequences to minorities because “‘unintended consequences’ are precisely not purposeful.” Id. at 211. Accordingly, in determining if an action is in violation of the 14th Amendment, courts are apparently to determine if the party in question is acting in an intended unconscious manner. While I am inclined to think any resort to “unconscious purposes” is a mistake, it is even more difficult to construe what an intended unconscious action might look like. For helpful introduction to the role of intention in human agency, see generally Anscombe, G.E.M., Intention (Cornell U. Press 1957)Google Scholar.
Likewise, in turning to a right to privacy, Rubenfeld believes that a meaningful distinction between conduct that conscribes and that which proscribes can be drawn. Rubenfeld is most intent to demonstrate that abortion falls within this conscriptive range; accordingly, he argues, “It… has the most invasive, far-reaching prescriptive, indeed conscriptive effects. It compels this woman to bear a child. It forces motherhood upon her.” Rubenfeld, supra n. 1, at 225. However, Rubenfeld goes on to suggest that suicide of the healthy and military conscription, when the nation's survival is at stake, do not fall within this prohibition. At this point, one begins to feel that such distinctions appear and disappear at just the moment necessary to reach Rubenfeld's desired result. Further, Rubenfeld claims that because marriage laws and laws regulating having children only prohibit an act; they are not conscriptive. But if the evil of proscribing abortions is the manner in which a life of motherhood with its attendant commitments is “forced” on a woman, how do laws prohibiting marriages not similarly “force” a life of monogamy with its attendant commitments on the polygamous man?
95. Rubenfeld, supra n. 1, at 245; see also id. at 223.
96. Id. at 217; see also id. at 180 (“The aim of constitutional interpretive method is not and cannot be to eliminate from constitutional law all matters of—interpretation”).
97. Noonan, John T., Jr., Narrowing the Nation's Power: The Supreme Court Sides with the States 144 (U. Cal. Press 2002)Google Scholar. Noonan suggests that the Court has erred in this manner in its recent “11th Amendment”/state sovereignty decisions. It should be noted that Noonan's counsel to “[l]et me state the facts… the law will follow” is a restatement of the manner in which moral content is borne via description highlighted in note 53. Id. at 144.
98. 347 U.S. 483(1954).
99. Rubenfeld, supra n. 1, at 180.
100. See generally Wittgenstein, Ludwig, On Certainty (Anscombe, G.E.M. & Wright, G.H. von eds., Paul, Denis & Anscombe, G.E.M. trans., Blackwell 1969)Google Scholar. In lieu of explanation, Wittgenstein counsels description that pays attention to the multiplicity of the world. See Wittgenstein, supra n. 38, at 47:
109. It was true to say that our considerations could not be scientific ones. It was not of any possible interest to us to find out empirically ‘that, contrary to our preconceived ideas, it is possible to think such-and-such’—whatever that may mean. (The conception of thought as a gaseous medium.) And we many not advance any kind of theory. There must not be anything hypothetical in our considerations. We must do away with all explanation, and description alone must take its place. And this description gets its light, that is to say its purpose, from the philosophical problems. These are, of course, not empirical problems; they are solved, rather, by looking into the workings of our language, and that in such a way as to make us recognize those workings: in despite of an urge to misunderstand them. The problems are solved, not by giving new information, but by arranging what we have always known. Philosophy is a battle against the bewitchment of our intelligence by means of language.
101. See Wittgenstein, supra n. 28, at 60-61 (“154. … Try not to think of understanding as a ‘mental process’ at all.—For that is the expression which confuses you. But ask yourself: in what sort of case, in what kind of circumstances, do we say, ‘Now I know how to go on,’ when, that is, the formula has occurred to me?”).
102. See id. at 48:
116. When philosophers use a word—“knowledge,” “being,” “object,” “I,” “proposition,” “name”—and try to grasp the essence of the thing, one must always ask oneself: is the word ever actually used in this way in the language-game which is its original home?—What we do is to bring words back from their metaphysical to their everyday use.