Freedom and Time: A Theory of Constitutional Self-Government
Freedom and Time: A Theory of Constitutional Self-Government
eBook
Related collections and offers
Overview
But this imperative, Rubenfeld argues, rests on a profoundly inadequate, deforming picture of the relationship between freedom and time. Instead, Rubenfeld suggests, human freedom—human being itself—-necessarily extends into both past and future; self-government consists of giving our lives meaning and purpose over time. From this conception of self-government, Rubenfeld derives a new theory of constitutional law’s place in democracy. Democracy, he writes, is not a matter of governance by the present “will of the people” it is a matter of a nation’s laying down and living up to enduring political and legal commitments. Constitutionalism is not counter to democracy, as many believe, or a pre-condition of democracy; it is or should be democracy itself--over time. On this basis, Rubenfeld offers a new understanding of constitutional interpretation and of the fundamental right of privacy.
Product Details
| ISBN-13: | 9780300129427 |
|---|---|
| Publisher: | Yale University Press |
| Publication date: | 10/01/2008 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| File size: | 2 MB |
About the Author
Read an Excerpt
Freedom and Time
A Theory of Constitutional Self-GovernmentBy JED RUBENFELD
Yale University Press
Copyright © 2001 Yale UniversityAll right reserved.
ISBN: 0-300-08048-4
Chapter One
THE MOMENT AND THE MILLENNIUMOn the first page of one of his novels, the author of The Book of Laughter and Forgetting has a wife ask her husband a question. How can it be that Western Europeans, generally so anxious for their safety, drive at breakneck speed on the highway? The husband's answer:
What could I say? Maybe this: the man hunched over his motorcycle can focus only on the present instant of his flight; he is caught in a fragment of time cut off from both the past and the future; he is wrenched from the continuity of time; he is outside time; in other words, he is in a state of ecstasy; in that state he is unaware of his age, his wife, his children, his worries, and so he has no fear, because ... a person freed of the future has nothing to fear.
This man is exemplary. For a long time, we have called on ourselves, in the name of freedom, to live-in the present.
The demand to live in the present has taken many forms. One repeated trope is casting off the dead hand of past law: "The earth belongs to the living," wrote Jefferson. Another is waking from a sleep: "J'ai hiverne dans mon passe," said Apollinaire. Another: bringing a repressed past to present consciousness and thereby escaping its grip. The "neurotic," Freud discovered, "suffer from reminiscences"; "they cannot get free of the past."
None of this is hedonism. Living in the present is a matter, in the first instance, not of pleasure but of freedom. And of speaking. Kundera's motorcyclist, for example, who wants to be free of past and future, also wants to talk. He has an "impatience to speak." He has the "stubborn urge to speak." Why? Because he too suffers from reminiscences, which he wishes he could forget. But why speak about such events? Not to dwell on them, or dwell in them. No: exactly as Freud would have had it, by speaking in the present, he would expurgate the past. Only speaking, he imagines, "can make him forget."
This connection between freedom and speech is not fortuitous. It is as deeply established in the language of constitutional liberty as in that of modern psychology. It arises wherever freedom has been idealized as living in the present. For in this ideal, freedom consists of following nothing other than the self's own will, its own voice. This voice, the one that speaks for the present and must be followed if freedom is to be had, appears and reappears in modern thought, expressing itself under a wide variety of names: the "voice of the people"; the "inner voice" or "true voice" of the individual; the "free speech" that is the primary right of democratic liberty.
And when it is experienced this way, as a matter of listening to our own present voice, freedom wars with all the texts, large and small, written and unwritten, that govern us.
In political life, the conjunction of liberty with present will puts democracy at war with constitutional law. In personal life, it puts freedom at war with character and with all the commitments, professional or intimate, in which we find ourselves engaged. It leaves us mystified, in other words, by the people we are, the monuments we have built, and the aspirations we pursue.
The desire to live in the present has a history. As we will see, it originates in an imperative of political liberty at the dawn of the modern age and proliferates thereafter-but only after having transmuted itself, obeying a logic we will explore, into an imperative of individual liberty-throughout modern culture. We are used to thinking of modernity as defined in part by future-oriented ideals of progress, increasing technological control, and so on. But modernity achieved its break with the past only by according the present the most profound normative and ontological privileges, and this privileging of the present eventually gave to modern man-who becomes modern man through just this progression-as little reason to think of his society's future as he has to think of its past.
Why are we not more familiar with this history? Because it is constantly obliged to conceal itself. Endlessly repeated, the demand to live in the present must endlessly present itself as something radically new. For the novel is what this desire desires, which means that it can never admit the extent to which it is itself so repetitious, so historical, so old.
To give just one example, consider "post-modernism." In the words of one of its most lucid proponents, the post-modern "life strategy" is:
a determination to live one day at a time.... To forbid the past to bear on the present. In short, to cut the present off at both ends, to sever the present from history. To abolish time in any other form but of a loose assembly, or an arbitrary sequence, of present moments; to flatten the flow of time into a continuous present.
If this "life strategy" seems bold and new to its proponents today, so perhaps did this one forty years ago:
In short, ... the decision is ... to explore that domain of experience where security is boredom ... and one exists in the present, in that enormous present which is without past or future, memory or planned intention....
What is extraordinary about the post-modern "life strategy" is only that it does not recognize how old-hat it is, how existentialist, how its image has been reflected forever in the smiling face ("live one day at a time!") of the heartbroken, dreamless consumerism that we fortunate Westerners know and love so well.
One especially far-reaching expression of the demand to live in the present can be found in modern economics. The freedom to gratify present 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 by 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. Modern economic rationality is far from hedonistic, but it remains wholly consistent with a society that does not save; a society that borrows uncountable sums against the credit of succeeding generations; a society whose stupefyingly gigantic productive apparatus is organized around the ideal of more and more immediate gratification.
"A certain emancipation from slavery to time is essential to philosophic thought," wrote Russell. "To realize the unimportance of time is the gate of wisdom."
But the truth is that every effort to "emancipate" ourselves from time, no matter how successful, must, in order to be successful, entrench itself in time. It must hold; an "emancipation from slavery to time," if it is to emancipate, must at a minimum be remembered, carried forward, projected into the future. The urge to emancipate the present from history is in this sense self-canceling. As a result, it has never commanded, and can never command, the sovereign position to which it aspires.
An example: the revolutions of the eighteenth century proclaimed the right of the living to govern themselves, but these revolutions in fact sought and won historical entrenchment of a certain constitutional transformation. If this transformation expressed the "voice of the people" then, it also projected its governance on generations to come. In America at least, the institutions of liberal constitutional democracy that emerged from this revolution have remained remarkably stable, paradoxically producing a powerful impetus in modern politics to conserve, to preserve, to be faithful to the past.
Modernity's psychological revolution is even more explicit in its contradictory relationship to the claims of the present. Psychoanalysis, ostensibly calling on individuals to free themselves from, to let go of, to "forget about" their past, also obliges its subjects to relive their past. Freud was well aware of this seeming contradiction. Having told his pupils that the neurotic lives too much in the past, he also told them this: "You will perhaps be surprised to learn" that "the task of a psycho-analytic treatment" is "to fill up all the gaps in the patient's memory, to remove his amnesias." Remembering to forget: in order that individuals can forget their past, in order that they live more fully in the present, psychoanalysis asks them to dwell in their past more than any psychology ever had.
Which is to say: the distinctively modern voice, the voice that speaks in the name of the present and hence of freedom, has always been equivocal. Proclaiming a freedom to be in the here and now, a freedom that was supposed to consist of living in the present, this voice turns out to require an interminable engagement with the past and with the future. The self and the society that were supposed ideally to live in the present turn out to have temporal commitments wholly exceeding, wholly ungraspable within, this ideal.
Nietzsche's call to live in such a way as to be able to will, at each moment, the eternal recurrence of the whole, was an attempt to respond to this predicament. If a self cannot live in the present without also projecting itself backward and forward in time, then a way would have to be found to bring the entirety of past and future within the scope, within the commanding but joyful affirmation, of present will. Of all the modern efforts to idealize freedom as perfect conformity between life and will, Nietzsche's is unsurpassable, because he calls on man both to live in the moment and, simultaneously, to live for all time.
But modernity sundered the moment from the millennium. Modernity created the present moment-created it as the exclusive site of being, and hence as the exclusive site of will and freedom-precisely by wrenching it from Christian cosmology and hence from eternity's machinery. The present moment cannot be what Nietzsche wants it to be-the ontologically and normatively privileged site of will, which alone can make us free-and yet be reunited with eternity. The willing-of-eternal-return remains joyfully skewered by a characteristically modern equivocation: between the desire to live in the present and-the search for lost time.
The call to live in the present portrays freedom as something that we ought to have, or at least aspire to have, here and now. If modern man wants what he wants here and now, what he wants first of all here and now is freedom.
But suppose freedom can never be had in the here and now.
In a sense, this thought is obvious. Of course it takes time to become free. But suppose it takes time, perhaps a long time, to be free. If so, it would follow that there could never be a present moment at which we are free. That even if freedom were possible for us, indeed even if it were actual, still it would never be possible for us to be actually free-here and now.
And suppose this difficult truth holds because it also takes time, perhaps a long time, to-be. Not that time is necessary to all Being-as-such, whatever that might mean, but that time is necessary in a special way to the being of things human: of human being and hence of human freedom. Every page of this book is an elaboration of this proposition.
What might be the significance of this thought? Here are four implications, to be elaborated in subsequent chapters. The first concerns the nature of the self and the mystery of the I. What is this thing, this I, the I whom I think I know when, aware of my own thinking, I think I am?
In the effort to know ourselves, two opposing temptations beguile us: toward what Merleau-Ponty called "full" and "empty" subjectivity. ("There are at bottom only two ideas of subjectivity-that of empty, unfettered and universal subjectivity, and that of full subjectivity sucked down into the world.") Sometimes we say who we are in the following way: by reference to our nationality, race or ethnicity, sex, religion, job, and so on. Here the I is filled up with the attributes and engagements that most centrally define me as the person I am. From this perspective, someone may say of himself that he would be "a totally different person" if he had, for example, a different belief about God.
Yet at other times we feel the absolute insufficiency of this perspective to capture the being of the I. Every belief we hold, every feature of our body, seems suddenly contingent and inessential to the I, which presents itself to us as the unheld holder of our beliefs, the incorporeal possessor of our bodies. Here we seem to know that the I is, but we are unable to predicate it except by saying, by repeating, that it is-I. And in this empty Cartesian predication, which ought to mean nothing, we may glimpse, with Yeats, the shivering singularity of humanness, the infinity of creation in ourselves:
I am I, am I ... All creation shivers With that sweet cry.
The full subject is rooted. He knows who he is. The empty subject knows no limits. He is free. As a result, in the play between these subjectivities-and this play plays itself out throughout modern thought-an opposition is created between self-knowledge and freedom.
This opposition is perfectly reproduced, for example, in Rawls. His individuals, whose subjectivity is empty in exactly Merleau-Ponty's sense, attain autonomy only by surrendering all particular knowledge of who they are. An idiosyncracy of the "original position"? Hardly. The same opposition is reproduced in the "thicker," "situated," or "encumbered" selves of Rawls's communitarian critics. These selves own a much fuller subjectivity, but the result is that they find themselves obliged to honor communal obligations that are "antecedent to choice"-for instance, defending slavery. These "involuntary obligations" of membership exert their claims on a communitarian self not by virtue of any choice he has made but by virtue of his being and his knowing who he is. The communitarian self knows himself much better than does the Rawlsian subject, but he attains self-knowledge only at a substantial price to his autonomy.
Whenever social science or cultural criticism seizes on one of these two tendencies in self-understanding-the tendency toward full or empty subjectivity-it produces stick figures instead of persons. Today such stick figures trick about in great numbers, peopling the regiments of "identity politics" on one side, where each individual is more or less consigned (even if only "strategically") to a racialized, sexualized, or intersectionalized identity that society has constructed for him, and the models of economic analysis or "rational choice" on the other, where empty subjectivity prevails and the social construction of individuals and their preferences is more or less ignored.
Merleau-Ponty not only remarked on the existence of these two opposing subjectivities. He went on to observe that they in fact arise from the "same idea."
Continues...
Excerpted from Freedom and Time by JED RUBENFELD Copyright © 2001 by Yale University. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
| Part I | Living in the Present | |
| 1. | The Moment and the Millennium | 3 |
| 2. | The Age of the New | 17 |
| 3. | Constitutional Self-Government on the Model of Speech | 45 |
| 4. | The Antinomies of Speech-Modeled Self-Government | 74 |
| Part II | Being Over Time | |
| 5. | Commitment | 91 |
| 6. | Reason Over Time | 103 |
| 7. | Being Over Time | 131 |
| 8. | Popularity | 145 |
| Part III | Constitutionalism as Democracy | |
| 9. | Constitutionalism as Democracy | 163 |
| 10. | Reading the Constitution as Written: Paradigm Case Interpretation | 178 |
| 11. | Sex Discrimination and Race Preferences | 196 |
| 12. | The Right of Privacy | 221 |
| Index | 256 |
What People are Saying About This
H. Jefferson Powell, Duke
University School of Law
A breathtaking accomplishment.
This is an elegant book, full of erudition and insight. Rubenfeld's arguments are genuinely original.
—New York University School of Law
Stanley Fish,
University of Illinois at Chicago
Graceful, learned, and immensely stimulating.
Michael J. Sandel,
Harvard University
This lucid and eloquent book will reshape existing debates about
the Constitution and its role in democratic life.
Rubenfeld's voice is distinctive in contemporary constitutional theory. His fascinating book is sure to spark excited discussion.
—from the University of Texas Law School
Bruce Ackerman, Yale Law School
This brilliant book heralds a new era in constitutional thought