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Freedom and TimeA Theory of Constitutional Self-Government$

Jed Rubenfeld

Print publication date: 2001

Print ISBN-13: 9780300080483

Published to Yale Scholarship Online: October 2013

DOI: 10.12987/yale/9780300080483.001.0001

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The Antinomies of Speech-Modeled Self-Government

The Antinomies of Speech-Modeled Self-Government

(p.74) Four The Antinomies of Speech-Modeled Self-Government
Freedom and Time

Jed Rubenfeld

Yale University Press

Abstract and Keywords

In a speech-modeled conception of self-government, the organizing term is government by the present will or voice of the governed. This conception of self-government speaks for the distinctively modern temporality and confronts the problem of fundamental rights by offering a limited matrix of solutions within which modern political and constitutional thought has played itself out. The real question is whether the speech-modeled conception of self-government offers a satisfactory account of self-government, rather than a satisfactory account of fundamental rights. This chapter shows that an antinomy, built into the very logic of the speech-modeled ideal of self-government, exists in the regulative ideal of governance by pure present popular voice. It examines Jacques Derrida's deconstruction of what he calls “logocentrism” and his analysis of Jean-Jacques Rousseau's commitment to a “logocentric” politics. It argues that political thought whose conception of self-government is dominated by the model of speech can proclaim itself in the name of the law, of freedom, or of justice—but only one at a time.

Keywords:   speech, self-government, temporality, Jacques Derrida, logocentrism, Jean-Jacques Rousseau, political thought, law, freedom, justice

I have tried to show: (1) the existence of a predominant conception of self-government, which I call speech-modeled, of which the organizing term is government by the present will or voice of the governed; (2) the distinctively modern temporality for which this conception of self-government speaks; (3) the fundamental problem it confronts when faced with a constitutional text laying down fundamental rights; (4) the limited matrix of solutions it makes available to address that problem; and (5) the considerable extent to which modern political and constitutional thought has played itself out within this matrix.

I have not claimed that every speech-modeled solution to the problem of fundamental rights is doomed ultimately to conceptual incoherence. Little would be gained by proving an ultimate irreconcilability between speech-modeled self-government and constitutional rights. Proving this irreconcilability would simply reconfirm the antithesis thesis, with which speech-modeled constitutional thought begins. The real question is not whether the speech-modeled conception of self-government offers a satisfactory account of fundamental rights, but whether it offers a satisfactory account of self-government.

Put the problem as follows. Imagine a people governing itself in ideal speech-modeled fashion. Imagine nationwide electronic town meetings. Make them as participatory, enlightened, rational, open, and thorough as you like. Put aside Condorcet paradoxes (but only for now; we will return to them later). Perhaps we should even stipulate, to top it off, that deliberation continues until the citizens reach unanimous decisions, which, on every matter large and small, are instantaneously effectuated. Imagine, in other words, government by the pure but deliberate voice of the people. Have we imagined self-government?

This is not to ask: have we imagined an utterly infeasible form of democratic politics? Undoubtedly so, but remember that this impractical picture (p.75) remains the regulative ideal organizing most theories of democracy, including theories of representative democracy. Nor is the question: might this perfect democratic politics fail to protect against majority tyranny? The question now is different. We are asking whether the speech-modeled conception of self-government, even when taken in ideal form, offers a coherent picture of what it means for a people to be self-governing.

The point of this chapter will be to demonstrate an ineradicable antinomy in the regulative ideal of governance by pure present popular voice. This antinomy built into the very logic of the speech-modeled ideal of self-government, makes that ideal presuppose what it cannot accept: the presence of texts, enacted in the past, governing the polity on fundamental matters of justice today and in the future.

Jacques Derrida has made this point repeatedly, for example in his long analysis of Rousseau in the Grammatology. There are substantial differences between Derrida's deconstruction of what he calls “logocentrism” and the critique to be pursued here of speech-modeled thought. Nevertheless, Derrida—especially Derrida on Rousseau—is pertinent here.

According to Derrida, Rousseau is so adamantly committed to a “logocentric” (or, roughly, speech-centered) politics, in which citizens must express their will “in their own voice, without proxy,” that he is forced into a kind of contradiction. Here is the passage with which Derrida concludes his analysis of The Social Contract:

The instance of writing must [in Rousseau] be effaced to the point where a sovereign people must not even write to itself, its assemblies must meet spontaneously, without “any formal summons.” Which implies—and this is a writing that Rousseau does not wish to read—that there were “fixed and periodic” assemblies that “cannot be abrogated or prorogued,” and therefore a “marked day [jour marqué].” That mark had to be made orally since the moment the possibility of writing were introduced into the operation, it would insinuate usurpation into the body of society. But is not a mark, wherever it is produced, the possibility of writing?1

Why should we think, as Derrida wants us to, that this marking of a day for popular assemblies poses a problem for Rousseau? The significance of this jour marqué requires some elucidation and emendation, but it is in fact, as Derrida suggests, the mark of a deep problem that cannot be solved within the terms of speech-modeled self-government.

(p.76) Rousseau did indeed maintain that in the ideal polity popular assemblies would meet without “formal summons” on a “marked day.” Now, this requirement did not mean, as Derrida might be read to indicate, that the assemblies were to meet “spontaneously,” as if the call to assemble had to go out solely by word of mouth (“orally”). Then Rousseau would have contradicted himself in a very obvious way, simultaneously demanding that the popular assemblies be spontaneous (springing up “orally”) and planned in advance (“marked” down in some kind of writing).

Rousseau did not fall into this contradiction. He condemned “spontaneously” gathered assemblies as illegitimate. Only an assembly convened on the marked day could make law. “[E]xcept for these assemblies, lawful by their date alone, every assembly of the people that has not been called by the magistrates … ought to be considered as illegitimate and everything done at it as null.” If one of these illegitimate, spontaneous assemblies purports to enact a law, such a law “is null; it is not a law.”2 So Rousseau rejected spontaneous assemblies; how then can he also have rejected a “formal summons” to assemble?

Rousseau's requirement was that the marked-day assemblies would need no formal summons from the currently governing officials. Rousseau imposed this condition not to ensure “spontaneity” or “orality,” but rather to ensure that the “fixed and periodic” popular assemblies would need no blessing from the current rulers, who “will never spare efforts, nor objections, nor obstacles, nor promises to discourage the people from holding them.”3 The day had to be marked in advance in order to establish the right of the people to assemble without regard to the will of the current governors. How was it to be marked? The day had to be marked, without possibility of prorogation, in the form of law. There needed to be no “formal summons,” not because the call to assemble was to erupt spontaneously, but because the call to assemble was to “emanate from the law.”4

Thus despite Derrida's statement that Rousseau's “sovereign people must not even write to itself,” Rousseau's very point (but at bottom this is Derrida's point as well) was that the people must write to itself in order to preserve its sovereignty. The people must pass a law addressed to itself, expressly calling on itself to assemble on particular dates, and this self-addressed writing must further provide that the convocation of the assemblies will not require any formal summons by the current governors.

(p.77) But in a society that aspires to governance by the present voice of the people, this self-addressed, self-written law, the one that marks the day of every legitimate popular assembly, is foundationally problematic.

The law that marks the day is a law that the voice of the people here and now cannot propound or ratify, because this law precedes any authoritative pronouncement of that voice. If the people can speak with legitimate, sovereign authority only when assembling on a marked day, that date must be marked before the people can authoritatively speak. Popular voice cannot, therefore, govern alone. A writing is essential to its governance, a foundational text enacted in the past that precedes and helps constitute the authority of the democratic voice today.

Which implies a broader point: in order for the voice of the people to govern, there must be a set of constitutional rules in place identifying the process whereby the voice of the people authoritatively speaks and makes law. There must be rules of recognition. There must always already be a preestablished constitutional process of some sort, which, because it is a necessary condition for the authoritative speaking of the democratic voice, cannot be installed by that voice.

All this is or should be familiar ground. But it is important to distinguish the point just made from an equally familiar one with which it is often bundled up: the supposed problem of infinite regress. Obviously, the legitimate authority of any law or lawmaking body cannot be founded on its own say-so. Thus the authority of every lawmaking institution and of every law seems to require a reaching back into the past, to prior authoritative norms or laws that establish the authority of the legislature or law in question. But of course the same problem would attach to these prior norms or laws, which would seem to require a further reaching back, and so on. Much is sometimes made of this foundationalist problem of infinite regress, but it is not the problem just described.

The regress problem is meant to highlight the impossibility of providing “ultimate” foundations for any legal order. The regress problem is said to show that no political-legal order can be founded without some kind of lawless act, some instituting act of force that cannot be justified without circularity or without assuming the existence of normative foundations that cannot themselves be ultimately grounded. This difficulty is not addressed with any particularity to speech-modeled systems of legitimate political authority; it applies to all systems of legitimate authority. Because it is in no way particular to the speech-modeled conception of self-government, the strategies for responding to this infinite regress problem in no way address the problem (p.78) I mean to raise concerning the jour marqué, which is a problem specific to speech-modeled self-government.

Consider how an infinite regress argument could be framed and answered in the case of the jour marqué. The regress argument would claim that within Rousseau's logic, no legitimate law could ever be made. Doesn't Rousseau expressly require a day-marking law as a condition necessary to the enactment of all legitimate law? But if so, then obviously there can never be any legitimate law. For the law that marked the day, in order to be a law, would have to have been ratified at an assembly convened on a previously marked day, which would require a prior law marking that day, which would in turn have to have been ratified at an assembly meeting on a previously marked day, and so on.

This regress problem, however, is not very serious. The Rousseauian answer would be to grant the propriety of an initial, revolutionary assembly, gathering despite the repressive efforts of the existing illegitimate government. Let this revolutionary assembly mark a day, and let it provide a further set of constitutional processes (voting rules and so on) to govern subsequent assemblies. Unless these rules are complied with, no assembly that gathers afterward is legitimate. In this way, the infinite regress is brought to a kind of halt by the introduction of a revolutionary, founding act.

To be sure, this act of revolutionary violence will not terminate the infinite regress in the sense of providing an ultimate normative ground. To begin with, a revolutionary act will not be legally justified at its own foundational moment. Moreover, if a principle of popular sovereignty is said to legitimize this revolutionary act, this principle obviously cannot itself be established by reference to popular will. This legitimizing principle, or some other principle, or some reference to convention, will ultimately have to stand as it were on its own bottom. In this sense there can be no end to the infinite regress; every normative system suffers from an Ultimate Lack of Foundations. But the force of this kind of infinite-regress objection is far from obvious, because any point supposedly derived from the Ultimate Lack of Foundations will itself be equally lacking in ultimate foundations. For example, it is logically impossible to say, on the basis of an Ultimate-Lack-of-Foundations argument, that the principle of popular sovereignty is unjustified, without presupposing some normative ground (even if only a normative demand for justification) that would itself be equally unjustified. A normative system cannot be criticized for its Ultimate Lack of Foundations without presupposing a norm to which the infinite regress problem would equally apply.

This problem is by no means confined to normative systems. Consider the critique of scientific truth associated with Thomas Kuhn, according to which (p.79) the science of any particular era and field is governed by prevailing “paradigms” that change over time and that are themselves foundationally unjustifiable and unverifiable (because they set the terms of what count as facts). Now, this critical history of science cannot be taken, as it often is, as a critique of “objective” truth—nor as a “disruption” of it, a “dislocation” of it, etc. The obvious reason is that to provide any leverage against truth at all, the Kuhnian position would have to proclaim itself as true. But as noted above, this truth would be subject to its own critique, i.e., to a showing that the practices and knowledges that go by the name of “history,” or the “history of science” in particular, are just as governed by changing, dominant paradigms as are those that go by the name of science. In other words, the most that can be said, on the basis of the Kuhnian position, is that it is always possible for any currently dominant scientific theory to be replaced by a new one based on new data inconsistent with the old paradigm. But this claim does not disrupt scientific truth; it merely restates what science itself already acknowledges. Needless to add, what I have just said about the Kuhnian history of science applies a fortiori to claims about the Social Constructedness of Reality. Such claims always depend on one assertion of “real” truth—namely the truth of their own claims about the social constructedness of reality.

So let us put away the infinite regress and consider instead a very different foundational problem raised by the jour marqué, a problem particular to speech-modeled thought. The invocation of an initial, legitimate, revolutionary assembly, even if it brings the infinite regress more or less to a halt, concedes that the present voice of the governed cannot exclusively govern. In other words, the writing that marks the day and sets up the other constitutional processes, even if it could be traced to a legitimate historical source, still cannot be regarded as an expression of present popular voice. This writing must always remain prior to, and constitutive of, any authoritative pronouncement of that voice.

Hence the voice of the governed—the will of the governed, here and now—cannot be supreme. It must itself be governed by a text, whether written or unwritten, established in the past, providing rules for its own speaking.

This logic might not overly discountenance a partisan of speech-modeled self-government. He might willingly grant the necessity of a pre-established constitutional process. Whoever supposed that a town meeting could conduct itself without rules of parliamentary procedure? And who cares what day the assembly meets? So long, he will say, as the constitutional rules do no more than allow the present popular will to govern on all matters of substance, the ideal of government by present popular will has not been substantially damaged by the fact that it depends on a process established in the past.

(p.80) I will not pause here to observe that matters of process may sometimes be more substantial than matters of substance. The constitutional intrusion of the past into the present is by no means limited to marked days or even, more generally, to matters of process. It extends to the most fundamental matters of justice, equality, citizenship, and political identity.

Who are we—we the living, we who are to govern ourselves? This we cannot announce itself, not in its own present voice. It must always presuppose a prior determination of its boundaries, its lines of inclusion and exclusion, without which the ideal of government by present popular will is unintelligible. If there were no prior determination of this we inscribed already into a nation's institutions, we would be unable to speak now at all. For the will of the governed to govern today, we must have more than constitutionally marked days. We must also have—we must also be—marked men.

In any particular nation, this we will have been the product of a history, a constitutional struggle, usually waged at the cost of considerable blood and fortune. (This point does not depend in any way on the concept of the nation-state; it would apply equally at a more localized level or at the level of world government.) To be who we are, our being must be governed by the past. To quote Derrida again, whose words echo Heidegger and in a strange way Burke: “the being of what we are is first of all inheritance, whether we like it or know it or not.”5

The inherited nature of political identity does not refer merely to the fact that certain geographical limits and border lines must have been marked out in advance. Within a polity—of whatever size or location—the problem of border lines repeats itself in the form of the struggle over equality and membership. These internal border lines will govern matters of race, sex, age, religion, and so on. Here too, the we whose will is to govern here and now cannot by reference to its own present will proclaim the operative principles of equality, for the simple reason that a particular set of equality (or inequality) principles must already be in place in order to identify the present will of this we.

We may be tempted today to think of our current equality principles as a priori truths or as derivable from the very concept of democracy itself. They are neither. They are a legacy: contingent, historical, substantive, written in blood, sustained imperfectly in the form of constitutional commitments, and elaborated through a democratic politics. Speech-modeled thought cannot grasp this point. It is obliged to conceive the we either as a product of undemocratic force or else as a product of a-prioristic reason.

(p.81) Robert Dahl, whose recognition of this difficulty is more sophisticated than most, provides an example. As noted earlier, Dahl's basic picture of democratic self-government is speech-modeled. To be genuinely authoritative, he says, the “consent of the governed” “would have to be continuous—of the living now subject to the laws, not of the dead who enacted them.”6 As a result, there is for Dahl a serious foundational difficulty when it comes to saying “what constitutes ‘a people’ for democratic purposes.” The present consent of the people cannot, as a logical matter, tell us what group of persons is the group of persons whose consent counts, because we would have to have identified this group in advance in order to consult its present will. Democratic theorists, says Dahl, have for the most part “either ignored” or “provided facile answers” to this problem.7

One conventional response, he notes, is to shrug off the problem with the thought that “every people defines itself,” which, as Dahl observes, seems to take the position that the definition of the people should, like all other matters, be left to popular “consent.” But Dahl points out that this answer cannot do, for the reason just discussed: popular consent cannot be measured until a political unit has already been determined. If the determination of the units of self-government were genuinely left to present consent, the only logical result would be that each individual would be called on to decide for himself which unit (if any) he belongs to, a result tantamount to “anarchism.” Dahl's conclusion: “we cannot solve the problem of the proper scope and domain of democratic units from within democratic theory.”8

How then is the problem to be solved? There are, Dahl finds, only two possible sources for determining the we of a democratic people: “reason” and “violence.” If nations heeded reason, he argues, they would embrace a universal equality principle (essentially universal adult citizenship, with exceptions in the case of the mentally defective), together with general criteria for selecting good geographical boundaries. But in reality, he acknowledges, the “answers to the question, what constitutes ‘a people’ for democratic purposes,” will “far more likely come” from “violence and coercion” than “from reasoned inferences.”9

This logic is unassailable given its starting point. If self-government is understood as governance by present consent, then the we must be established in some fashion external to the process of self-government itself. “Like the (p.82) majority [rule] principle, the democratic process presupposes a proper unit.”10 Because democracy cannot determine its own unit, “reason” and “violence” (where “violence” includes both coercion and accident) would therefore seem the only sources through which a people's border lines—its lines of exclusion, internal and external—can be established.

Which is to say: speech-modeled self-government produces an antinomy at the heart of self-government. It produces the necessity of quitting the domain of democratic self-government in order to answer a democracy's most fundamental questions of justice, equality, and citizenship. This antinomy is driven entirely by the present-tense temporality of speech-modeled thought. These fundamental questions cannot be answered democratically when democracy has been compressed into the punctuated temporality of governance by present will. But they can be and have been answered democratically, when democracy is permitted temporal extension.

Consider a United States court holding that a particular state voting law violates the Fourteenth or Fifteenth Amendment's citizenship and equality guarantees. Does this decision represent a leap into the domain of reason or violence? To be sure, the court's decision will presumably employ both reason and coercion, as does every judicial decision. But in enforcing the Fourteenth or Fifteenth Amendment, a United States court ultimately enforces century-old constitutional commitments enacted and maintained through repeated, intense democratic struggles.

A people cannot in the present determine its own operative principles of inclusion and exclusion, because any expression of present popular will must already presuppose the operation of certain principles of inclusion and exclusion. But a people can have determined its operative principles of inclusion and exclusion over time. The embarrassment of speech-modeled theory is that, as Dahl illustrates, it has no conceptual resources through which to recognize the degree to which a country like America has democratically forged its own foundational principles of equality and citizenship over time. In speech-modeled thought, America's constitutional equality principles dissolve into either a continuing act of violence or a vehicle for a priori reasoning.

Dahl is by no means alone on this point. At the heart of the work of such important legal academics as John Hart Ely and Ronald Dworkin is the effort to understand the equality principles of the Fourteenth Amendment through a-prioristic reasoning about the nature of democracy. But there is no single set of equality postulates that can be said to underlie democracy. There is any number of such postulates, so that the most that can be said is that democracy (p.83) requires that the selection of a particular set of equality principles ought to be made—democratically. And the only way a democracy can give itself such principles democratically is by doing so over time.

It will be replied, however, that this “over time”—this recourse to history—merely defers, but cannot solve, the impossibility of democratically establishing principles of equality and justice. After all, it might be said, America's constitutional achievements of the 1860s were ultimately the spoils of war, a war in which one set of claims of nationhood and self-determination triumphed over another set by force. Sooner or later, any attempt to trace this nation's equality and citizenship principles to its constitutional history will necessarily run up against acts of undemocratic force. In any nation there must be, whether just yesterday or long ago, an initial drawing of lines, which may have provided the starting point for a democratic process but which, in its own time and place, cannot have been democratically accomplished.

Here the claim 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, through little or no agency of his own, but this person may still, much later, be the author of his commitments.

A constitutional enactment like the Fourteenth Amendment can always be traced to a war or to the imposition of governance by one group (say, the white men of one region) upon another. Nevertheless, the trichotomy of reason, force, and present will is simply too impoverished a grid on which to try to map what happens when a nation like the United States constitutionally remakes its own principles of equality and citizenship. The inheritance of the Fourteenth Amendment cannot be reduced to the language of a-temporal reason on the one hand or undemocratic violence on the other. It is a violent but democratic inheritance. American constitution-writing processes have been lamentable in a wide variety of ways, but they were in their own time more democratic than almost any such processes the world had ever known. The point is that the speech-modeled conception of self-government cannot embrace or work within—it has no conceptual resources through which to embrace or work within—this democratic inheritance.

The struggle for law that every democracy must wage is a struggle in which force, reason, and present popular will all figure, but in which there may also (p.84) unfold an effort that exceeds every one of these terms. This is the effort by which a people would remake the state, over time, in the light of its own self-given political commitments. (But is there such a thing as a people, capable of acting as the “author” of constitutional commitments? Is it possible to speak meaningfully or even intelligibly of “peoples” as inter-generational political subjects? Permit me to continue to postpone this objection. It is the subject of Chapter Eight.) A people today must be governed by rules of equality and inequality, of inclusion and exclusion, that it will necessarily have inherited from its constitutional past. As a result, self-government cannot be had on the model of speech. When self-government is conceived as governance by the present will of the governed, self-government is impossible with respect to the polity's most fundamental questions of equality and membership.

Grant, then, that on some of the matters most fundamental to any polity, present popular will cannot govern. Self-government must always be, on these matters, even in the most idealized system of electronic town meetings, government of the present by the past. But perhaps a partisan of speech-modeled self-government will concede this too. Perhaps he will agree that governance by the will of the governed requires the existence not only of a set of inherited constitutional processes (voting rules and the like), but also of a set of inherited citizenship and equality principles. On all other matters, he may say, the will of the people can and should be supreme. Of course self-government requires the prior establishment of a democratic process and a democratic “unit”—a people—but once such a process and such a unit have been put in place, what can self-government mean other than governance by the present will of the people?

Even this deeply compromised version of speech-modeled self-government cannot survive. The reason is that democratic self-government is not only bound up with the past. It is also entrained in the future. Self-government is never a matter of governing what is; it is always a matter of governing what will be. Political decisions made today, no matter how perfectly expressive of present popular will, can be realized only tomorrow. Self-government is always government of the future.

Imagine a perfectly consummated, original “constitutional moment” at which a free people brought itself into being and defined every inch of the nation's legal landscape. This sublime moment would not constitute the achievement of self-government—not then, not at that moment. Indeed, as Derrida says, at a genuinely foundational moment of this sort, when a people (p.85) declares its own independence and its own constitution, the “people does not exist.”11 At this originary moment, if there ever were such a moment, the people's independent existence could be rendered only in the “will have been” of a “future perfect.”12

The people will have existed, it will have achieved independence, if the law laid down at that original moment holds. At a truly foundational constitutional moment, an expression of popular voice would have to be like a performative speech act that must itself bring about the very conventions within which alone it can felicitously perform. It could only gesture toward a future perfect, the “more perfect union” that it promises and that alone can secure, retroactively, its legitimate authority. “There are cases in which it is not known for generations if the performative of the violent founding of a state is ‘felicitous’ or not.”13

But this temporal extension—this projection toward a future perfect—is not only a necessary part of a revolutionary founding; it is part of the internal structure of every act of lawmaking. Say that a law is enacted at time t1 in accordance with the democratic will at t1. Is this enactment what it claims to be—law? It will have been law only if at some later time t2, this act that calls itself law holds. A putative act of law that never holds anyone under any circumstances, whether by force, threat, moral suasion, or otherwise, never was law. It might have been an attempt to make law, but it would have failed. Even if an act of putative law were applied at the very moment of its announcement but never again (as if, for example, a court announced a new rule in a given case but this “rule” never applied to and never governed anyone in any way ever again), the act would not be one of law. It would merely be an act of force—perhaps just, but not law.

For there to be law, there must be a holding. Two moments at least are required for law: one at which a rule is established, and one at which it holds. Law, therefore, cannot be made, and never exists, in a present. It exceeds the here and now; it exceeds the present-tense temporality in the name of which speech-modeled self-government proclaims its prerogatives. Law is something that exists only over time.

This was Holmes's insight when he famously defined law as a “prophecy” (p.86) What the law is now is always a matter of what is to come. Law is a prefiguring today, of something that is to be tomorrow, according to rules established yesterday.

For this reason the voice of the people here and now can never give itself law. The speech-modeled ideal of self-government is antinomic in the strictest sense: it is opposed to law. The self that would live by its own voice hates law. It cannot abide by law, and it cannot make law. Law is always, from its point of view, a lapse from authenticity, a compromise with freedom, a fall from grace.

Government by present voice is incompatible with law, because law can never be merely spoken. It requires a writing; it requires language preserved over time. Law is always written. (Even in a society whose law is preserved solely by oral tradition.) And government requires law. Which is to say: a people can govern itself only by both being governed by its past and governing its future.

This double intrusion of past and future into present voice explodes the entire constellation of concepts behind the speech-modeled ideal. It explodes the picture of self-government as an ideal type of “being in the present.” A people never governs itself in its own here and now. It will have governed itself in its own there and then if it successfully maintains its constitutional past and projects itself and its law into the future. A constitution can never be founded in a sublime moment from a revolutionary past. It can find its foundations only—in its own future.

Thus a people can never be autonomous, self-law-giving, in the present. Should it really be surprising to say so? Nothing a people can do can be done in a moment—nothing, at least, of any moment. The important things a free people can do may take generations to accomplish. The equal protection of the laws is not made real the moment (if there ever is such a moment) it is declared by the Voice of the People. It becomes a reality only over time—perhaps over centuries. If, therefore, self-government is to be of any moment, if it is to concern real achievements under law rather than mere declaratory proclamations, self-government cannot be of or for the moment. Self-government cannot be an exercise merely of the freedom of speech and all that the freedom of speech entails (political dialogue, formation of the “public will,” responsiveness of the representatives to the “voice of the people”). Self-government requires an inscriptive politics, a politics that exercises the freedom to write, a politics oriented around the production and enforcement of a democratic text laying down enduring principles and institutions for generations to come.

(p.87) To achieve self-government, a people must do more than seize the moment. A people must attempt the reins of time.

Although speech-modeled self-government is opposed to law, it is not the case that speech-modeled thinking has no devices for accommodating law or the values of legality. The problem for speech-modeled thought is that it can reach this accommodation with legality only by compromising its ideal of self-government.

For example, when originalism locates the authoritative democratic voice in a past moment, the values of legality are preserved. The two moments minimally necessary for the existence of law are now in place: one at which law is established (the “original” or founding moment) and another at which it is to be enforced (the present moment). This is the true appeal of originalism and the other past-oriented schools of speech-modeled self-government: they stand for the virtues of legality, such as stability, predictability, the importance of settled expectations, and constraints on governmental action. (Which is why purveyors of the past-oriented schools of interpretation always hold themselves out as the champions of the rule of law and of the Constitution's status as law.) But the present moment secures the virtues of legality only by giving up what should have been its god-given speech-modeled right: the right to rule itself by its own living voice.

A similar disjunction occurs with respect to justice and self-government. Within the model of speech, justice too is a desideratum in tension with the ideal of self-rule in the here and now. Once again, this is not to say that speech-modeled thought can find no way to accommodate justice. Speech-modeled thought makes this accommodation whenever it locates foundational law neither in the past, nor in the present, but in the domain of predicted will or timeless rights. Which is why the predicted-voice and timeless-voice schools of speech-modeled thought, such as Rawlsianism or other forms of liberal constitutionalism, make their case ultimately in the name of justice. But as soon as democracy is rendered in the language of hypothetical consent or timeless truths, the actual truth is that the living have lost their speech-modeled right to be their own masters in the here and now. In other words, the model of speech can claim the mantle of justice, but only, once more, at the cost of seriously compromising its ideal of self-government in the here and now. Only the present-oriented speech-modeled schools—the contemporary-consensus constitutionalists, the discursive democrats, the believers in strong participatory democracy, the process-based constitutionalists—attempt to preserve this ideal, and as a result they make their case in the name of freedom (conceived as present-tense self-rule).

(p.88) Thus the model of speech ends by disintegrating the three deepest aspirations of democratic self-government—legality, freedom, and justice. Punctuating time, the ideal of governance by the will of the governed carves up the domain of political legitimacy by associating these three aspirations with, respectively, the claims of the past, the claims of the present, and the claims of a time to come. The result is a strange three-fronted battle visible throughout modern political and constitutional thought, in which the rhetorics of law, freedom, and justice unceasingly contend one against the other.

Originalists and other conservatives demand respect for the past, appealing to the need for order, stability, and the rule of law. More thoroughgoing democrats insist on the freedom of the living to define for themselves their own conception of constitutional liberty. Against both these parties, moral philosophers like Rawls, through an appeal to the will of an ideal community, try to theorize the entire legal system and particularly the entrenched principles of constitutional law through the lens of justice. And all will defend their positions by reference to the will of the governed—past, present, or predicted.

So long as its conception of self-government is dominated by the model of speech, political thought can proclaim itself in the name of the law, of freedom, or of justice—but it can do so only one at a time. It can never do justice to self-government under law. Freedom, conceived as a desideratum of the here and now, becomes a thing at war with the rule of law and the reign of justice. Worse still, freedom itself becomes impossible—a thing unintelligible in itself. Freedom cannot exist here and now; it is always, itself, a thing of the past and future.

To begin to do justice to self-government under law, we would need to elaborate a conception of human freedom that incorporated temporal extension into the very structure of the self and its government. We would need to replace the speech-modeled conception of self-government with a conception of self-government on the model of writing, in which self-government was understood in terms of living under self-authored, temporally extended commitments. Why the “model of writing”? Not because there is a necessity for a literal writing, but because temporally extended self-government is available only to beings who have what I will call the freedom to write—who can communicate with themselves over time, who can give themselves texts, including legal texts, to govern their futures.

What needs to be explored, then, is the kind of freedom that is at stake when self-government is reconceived to incorporate temporal extension—when it is reconceived, in other words, on the model of writing. (p.89)


(1) . Jacques Derrida, Of Grammatology 302 (G.C. Spivak trans., 1976).

(2) . Rousseau, The Social Contract, supra Chapter 2, note 1, at 100, 102.

(3) . Id. at 101.

(4) . Id. at 100.

(5) . Derrida, supra Chapter 1, note 15, at 54.

(6) . Robert Dahl, Democracy and Its Critics 50 (1989).

(7) . Id. at 193.

(8) . Id. at 196, 207.

(9) . Id.

(10) . Id. at 207 (emphasis added).

(11) . Jacques Derrida, Declarations of Independence, New Political Science 7, 10 (Summer 1986).

(12) . Id.

(13) . Jacques Derrida, Force of Law: The “Mystical Foundation of Authority,” 11 Cardozo L. Rev. 919, 965, 993 (Mary Quaintance trans., 1990).