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he rule of law is a peculiar sort of political practice because it is simultaneously authoritative and contested*. There is no legal assertion, including legal texts, that cannot become a subject of interpretive contestation. Nothing is settled for good. Easy cases can become hard, and hard cases easy. Americans are regularly discovering that what we thought was settled is not. To do law is not to discover the truth upon which arguments purport to stand. It is, rather, to create those truths. To succeed at law is to persuade, not to prove. Legal arguments deploy analogies not deductions. Analogies are specific to the beliefs and practices of a particular time and place. Judgments of sameness and difference shift over time. Is the gay couple different from, or the same as, the heterosexual couple with respect to marriage? Many people have been persuaded to change their view on this issue in recent years[1].
If the rule of law is a practice of interpretive contestation, an immediate puzzle arises: Why doesn’t disagreement undermine authority? What or where is the unity that makes possible difference without fracture? The natural sciences achieve unity across difference through a common method and a shared confidence in progress toward truth. In law, there is neither a common method nor a shared belief in progress. Expressing the point in the American idiom, if to live under the constitution is to join in a practice of interpretive disagreement, what prevents disagreement from becoming disunion? It has, after all, happened before.
Since conflict is the ordinary appearance of American legal practice, it can be difficult to distinguish an existential rupture from the ordinary competition among factions. There will always be apologists assuring us that nothing unusual is happening. But, at some point, a disagreement among friends becomes a war between enemies[2]. Violence is one marker—as in our Civil War—but violence does not begin until the friendship is over[3]. We argue about the law, but behind those arguments today is a deep and compelling question: Are we still friends?
What, then, are the conditions of belief that support friendship as unity across legal difference? What would a rupture of those conditions look like, and most importantly, is the United States at such a point of rupture in its legal order? Fear that we are at such a point motivates this essay. Exploring the U.S. position, I nevertheless hope to say something of interest to a wider audience.
To answer this question of unity or rupture, I am going to develop two distinctions and work to establish the relationship between them. The first is that between legality and legitimacy; the second is that of politics and the political. I will argue that expressions of legality absent concern with legitimacy are signs of rupture, and that the source of legitimacy is the political. To understand the fractured state of the American legal order today, we must understand how politics has eclipsed the political. My aim, then, is to disturb the distinction between law and politics in a way that does justice to both, rather than using each to undermine the other.
I will proceed in my usual manner. First, I will offer some comments on method, and the study of the social imaginary. Second, I will explore what it means to live under the authority of a legal text. Third, I will draw the distinction of politics from the political. Fourth, I will describe the point of contact between legitimacy and the political. Finally, I will consider the end of the world that was the rule of law.
I. Studying the Social Imagination
My argument arises at the intersection of the two broad approaches to law that I have pursued: cultural study and political theology. Both approaches start from a view of the rule of law as an interpretive practice carried forward by the social imaginary. Imaginative constructions have a history and a logic. This suggests the two-fold character of interpretive method: genealogical and architectural[4].
Genealogy is historical but not history. The historian labors under an idea of causation. He wants to trace influence through individuals and institutions. Genealogy makes no causal claims. Its interest is in changes in interpretive practices. About the causes of such changes, it has nothing to say[5]. It understands ideas to follow from ideas, in the same way as ideas develop in a conversation. A response follows a statement, but it is not caused by it[6]. There must be a moment of decision —a choice among possible responses. Genealogy is that form of historical account that is commensurate with a free subject[7]. That free subject can be an individual or a collective agent—for example, the constitutive power of the state[8].
Similarly, architecture has a logic, but it lacks the formal character of proof. Architectural inquiry understands the work of the imagination to be analogical. We maintain a meaningful world by extending the frontiers of analogy. The social imaginary is “viral” in its activity, reproducing patterns of order wherever it looks[9]. Those analogical patterns can expand toward the macrocosm or contract toward the microcosm. Movement in both directions is constant. Law school training is practice in the construction of analogies in both directions. We teach students to see similarity and difference—that is, we teach law as rhetorical practice.
Decades ago, I awkwardly labeled this dual approach of genealogy and architecture, the “cultural study of law”. The approach locates my work loosely within a philosophical tradition that speaks of the “historical a priori”[10]. This is an imaginative space that is both contingent and necessary. It is necessary as long as it persuades; it will persuade as long as it is experienced as necessary.
This approach led me, over time, to think of my work as exploring an American political theology. Our practices of legal and political interpretation are organized around belief in a transgenerational, sovereign subject—the people—that is the source of law[11]. Faith in the popular sovereign has supported a practice of sacrifice and a hermeneutic of textual interpretation[12]. Sacrifice and hermeneutics are the familiar elements of Western religious traditions.
It is not an exaggeration to say that the American civil religion has been a continuation of Western monotheism: an analogical extension into a non-sectarian political space. Tocqueville already made the point: “The people reign over the American political world as God rules over the universe.”[13] Their creative work is law, not nature. Interpreting law, we argue over what the people have done—an inquiry patterned on early 19th century natural theology, which thought of science as an exploration of the mind of God[14]. As was the case then, we have our legal creationists and our deists.
The American civil religion has always had one hand reaching for a gun and the other for the constitution: sacrifice and text. In one form or another, the United States has been at war or preparing for war through most of its history. The power of the state lies in the endurance of its law and the willingness of citizens to sacrifice themselves in defense of that law.
I am no longer sure that Americans retain a robust civic religion. Neither element of our civic faith—sacrifice and law—holds the same place in citizen belief and practice that it did traditionally. Consider the place of the gun, enshrined in our Second Amendment right to bear arms. The gun was long a symbol of a willingness to sacrifice, and the Second Amendment was interpreted accordingly[15]. Today, the gun receives legal protection to defend against the state, as if state power is just another threat to individual autonomy. The result is not a “well-regulated militia”, as the Second Amendment puts it, but mass murder and mayhem protected in the name of individual liberty.
I do not think my earlier work on the political imaginary was wrong; this is not a moment for self-repudiation. I think rather that the country has been rapidly changing. Trump and his administration were simply unimaginable prior to his election. Trump’s populist authoritarianism stands against both elements of our civic faith. Trump never uses the language of sacrifice, even as he appeals to violence. Similarly, he defines himself against the rule of law, for example, calling judges he appointed “his judges” and expecting them to do his bidding.
Some of the deep changes in national life are captured in a recent poll that shows dramatic declines in patriotism, religiosity, and familial commitment—declines in the order of 50 %—over the last 25 years[16]. Political identity, sacrificial faith, and an intergenerational commitment have all been central to my work on the American social imaginary. In this poll, those saying that patriotism and religion are important to them each numbered between 35 and 40 percent. One suspects that the two groups substantially overlap. Many of them represent less the continuation of an American civil religion and more the co-optation of American political formations by an evangelical faith[17].
America is like a church that has lost its faith. We can continue for some time following the old rituals and mouthing the old beliefs, but there is a growing sense of hypocrisy and nihilism, particularly among the young and disaffected. They see the opportunistic use of political institutions—including courts—they do not see a common faith.
To be clear, there is no going back; nor should there be. This is the contingency contained in the idea of the historical a priori. That America’s 19th century political practices and beliefs are not up to dealing with the forms of community and communication with which we live today should be no surprise[18].
In this twilight era of the rule of law—close enough to remember, but already receding—we need to reflect on what we have lost, where we are, and what may lie ahead.
II. How We Have Lived
Americans have always had one hand reaching for the Constitution. A surprising number carry around a pocket copy. What, then, does it mean to live under the authority of a text? One cannot ask that question without hearing echoes of millennia of Jewish and then Christian practice. It became a pressing secular question last year when the Supreme Court declared that Roe v. Wade, the opinion holding there is a constitutional right to choose an abortion, was “egregiously wrong from the start”[19]. What could this possibly mean? Roe had been supported by seven Justices; it has been repeatedly reaffirmed. The decision organized legal and medical practice for 50 years.
What was there to be wrong about? Can we make sense of the idea that law has a content separate from our beliefs and practices? What exactly is it that makes our law “ours” if its truth is independent of our beliefs? Every Justice ruling in support of overturning Roe is a Catholic or was raised a Catholic[20]. In this accusation of a decades-long error, one hears echoes of the Catholic charge against Reformation Protestantism: wrong from the start. These are fighting words because they do not make sense except as a declaration of unbridgeable difference.
Foreigners looking at American legal practice often speak of a fetishism of the text. The centrality of text gives an appearance of plausibility to the Court’s assertion of error. The text, after all, remains unchanged even as our beliefs change. In our actual legal practices, however, the constitutional text is ordinarily far less important than prior judicial opinions. Interpretation of precedents constitutes the ordinary, routine work of the courts.
The text’s special function is to provide a ground for overruling past doctrinal developments: “The text,” the Court will announce, “does not say this”. Constitutional text, ironically, does not provide stability to law. It is, instead, the resource for dramatically changing course[21]. So it was in Dobbs: Roe was wrong, the Court said, because the constitutional text says nothing about abortion. That the text is silent with respect to abortion is not a fact, but only another interpretive claim. For the previous majority—and the dissenters—there were ample textual sources, beginning with clauses on equality and liberty. There was also 50 years of doctrinal development.
Americans of every generation have known that they must come to terms with the constitution as their own. That coming to terms has meant finding one’s place in a field of interpretive controversy. A constitutional claim is an interpretive position intended to persuade others. No one ever achieves a conclusive victory on this contested field.
This practice of living under a text can be compared to the performance of a play. Every performance is an interpretation of the text, and every interpretation takes a position in relation to other possible interpretations. A good performance is one the participants and the audience enthusiastically embrace for the right reasons. Reasons tied to the circumstances of a single performance—for example, profit or personal success—will not persuade other audiences. Those “poor” reasons can include the opinions of the playwright. Authors are often poor interpreters of their own work. Even reasons of the right sort will change over time as interests, values, and background understandings change. The past has no special claim, as if proximity to creation creates authority. We might, for example, believe that we understand Oedipus better after Freud, than before.
To perform King Lear is to enter into a history of performances. Each new performance engages a multi-generational conversation about the meaning of the play. There is no truth of the play’s text by which to measure a performance; there are only other possible interpretations. A performance may go so far as to drop some lines or even scenes because the play is judged to be better without them. About these matters there will be disagreement, both with respect to the general practice and to the specific proposal. There is no third party whose authority over interpretation is final.
To be governed by the constitution is to participate in a performance in which we are directors, actors, and audience. Here too, the meaning of the text does not exist independently of the successful performance, and there is no measure of success apart from the actions and beliefs of the participants—the members of the community. As with the play, interpretive disagreement is part of the practice. Participants may describe positions with which they disagree as “wrong”, but that cannot mean anything other than they have reasons to prefer a different interpretation. We cannot appeal to the authority of the text to decide among contesting interpretations. It contains no “hidden” truth, just truths that have not yet been realized.
The work of the play’s text occurs only within a world made possible by the decision to perform, and that world has a history. Of course, we might pick up the text and organize a performance with no knowledge of this history. That does not make our performance ahistorical, for there will be reasons for this attitude toward the text—reasons that are persuasive in particular contexts. If we really lost all history of performance, trying to follow the text would be as difficult as it would be to carry out the instructions for an Aztec ritual today: we would have no idea what we were doing.
Similarly with the constitution, we must decide for the text by holding open the world in which the text is performed. To do so, is to engage with others who have been or are performing the text. There are no private meanings, no private relationships, to the text. We cannot claim to be “just reading” for that is no less a choice than other interpretations.
Self-consciousness about our position in this history of performances points to the specific ethos of living within the rule of law: our first political responsibility is to sustain the world in which the constitution can do its work. Borrowing from Heidegger’s idea of the “worlding of the world”, we can call this work the “constituting of the constitution”[22]. The work of the constitution is the creation of citizens who participate in popular sovereignty through the rule of law. To hold open the world in which the constitution can do this work is to maintain faith in our civil religion.
A biblical analogy may help here. When Abraham heard God’s claim, he responded, “Here am I.” He would sacrifice Isaac. Moses responds in the same way when he hears God’s call from the burning bush, which leads to the reception of law. The sovereign claim speaks to sacrifice and law. The response is an existential affirmation of identity. Americans have responded to the constitutional claim with the same “Here am I”. For the sake of the law, they would sacrifice themselves and their children. The constituting work of the constitution is the claim. The responsibility of the courts is to hold open the world in which the claim can be heard.
Not much can be said in the abstract about what makes for a better interpretation—that is, one that holds open the constitutional world. The right interpretation is one that maintains our civic faith that law’s origin is in the popular sovereign, and that to follow the law is to realize popular sovereignty. A practice of interpretation that undermines this belief is a sin against the political life of the nation. But there are no rules that tell us what will successfully persuade citizens to believe in such a world. No one could have predicted that Moses would hear God in a burning bush; he could have turned away.
Often, a play’s performance is better to the degree that it sets forth an interpretation that makes sense of the play as a whole. An interpretation that brings unity to the elements is aesthetically better than one that shows the play to lack coherence. This norm is less compelling, however, when we turn from art to law, where moral and ethical norms are also relevant. An interpretation that advances a compelling moral good may be better than one that is arguably more coherent with other elements of law.
Ronald Dworkin thought that coherence was a condition of citizen identification with the legal order, but that is too strong a demand[23]. We accept a good deal of normative incoherence in our own lives; we accept the idea that different values will inform different spheres of activity[24]. Similarly, it is not necessarily a vice for a constitutional interpretation to lack coherence in instances in which it becomes possible to realize significant moral and ethical goods. Coherence, then, is not an essential norm by which to measure interpretations. It is only another element of interpretive disagreement.
An interpretation of a play is better as it allows us to see more of the world through the play. We experience the world showing itself through the point of view that constitutes the play. When we watch an excellent performance of King Lear, we are attending to a world of fathers and daughters, of law and love, of madness and death. A good performance of the constitution similarly enables us to see more of the world in its political dimension. An interpretation is better as it enriches our understanding of our political identity as governing ourselves through law.
Conversely, an interpretation that diminishes our experience of political life is a poor interpretation. An interpretation, for example, that strikes us as arbitrary or immoral would not make sense of our political identity. If citizens experience constitutional law as a political diminishment, the scene is set for resistance and rebellion. We rightly ask why we would impose injustice upon ourselves or adopt procedures that are unfair. If the answer is that we would not, then the legal form may remain, but the constitution is no longer doing its work.
We are in an unstable political position, when we believe that we are collectively better than our law. Nations have often been ruled by incompetent or unjust authorities, but they do not purport to be self-governing. What is our theory of legitimacy that could support constitutional injustice? Constitutional self-government is not simply majority rule, as if injustice is legitimated by victory at the polls. Neither, however, is it rule by a minority pursuing values rejected by most citizens. The first is mob rule; the second is authoritarianism. Neither position allows the constitution to do its constitutive work. Neither position expresses the unity among friends.
III. Politics and the Political
Politics refers to our ordinary contests over policy, representation, and distribution. Politics moves with the electoral cycle; we anticipate both winning and losing over time. Politics, we like to say, “ends at the water’s edge.” That which we defend beyond the edge is the political. The political runs to sovereignty, and thus to identity. Politics is a matter of interests; the political, of sacrifice. It is that which all factions affirm in moments of crisis. Of politics, we ask “what’s in it for me?” About the political, we ask “What can I give?”
The line, of course, is not always sharp, as if we are either doing politics or the political. It is sharp, however, when we are in an “exceptional” situation. Elsewhere, I have argued that in American political life there are two forms of exception: war and judicial review[25]. Again, we see the intertwined character of sacrifice and law. The soldier and the Justice are both images of the citizen acting in the presence of the popular sovereign; we are to see through each to the popular sovereign. Both wear uniforms that suppress difference. About both, we say that politics is to have no place.
When the popular sovereign appears, it can only do two things: defeat the enemy or set forth law. American has been a nation of soldiers and lawyers from the beginning. Citizens can be drafted into military service and jury duty—nothing else. These are equal responsibilities of citizenship, equal expressions of political identity, and equal expressions of the constituting work of the constitution. Compulsion does not really capture what is at stake in these roles. Rather, the roles express the nature of freedom from the perspective of sovereignty—freely to realize a political identity[26]. They fall into a category that I have elsewhere called “sovereign rights”[27].
The exception, Carl Schmitt said, can clarify the rule[28]. That is the case here. For the most part, we realize our political identity through politics: our way of being political is to do politics. For example, we expect a losing candidate to affirm the victory of his or opponent as an expression of a common faith in the political. This is a faith among friends. Collective agency often has this structure of linking disagreement to identity. A club might have to decide how to invest its resources. There can be intense division of opinion as two sides argue about the best decision. Once the decision is made—whether by a simple majority vote or some other decision rule—the members will affirm that “we” decided to make this investment. Unity precedes and follows the controversy. It, thereby, contains it. Failure would be to fracture the club.
This same process is evident in the narrative of national life. It is entirely normal to have disagreements about who will represent us or what we should do. It is not normal to disagree about the existence of the we. The controversies of politics are constantly translated into the idiom of the political when the nation’s history is written as the story of a single, collective subject realizing itself through its decisions. The popular sovereign is both the agent of history and the source of law. When politics displaces the political, division displaces unity. There is no longer a we, and the nation is in an existential crisis. The courts and the rule of law are not immune from this crisis.
The reciprocal dependence of politics and the political is replicated in legal beliefs and practices. Notoriously, American politics tends toward juridification: opposing parties translate their claims into arguments of legal entitlement. Adjudication serves not simply to resolve a dispute, but to keep disagreement among friends from becoming war between enemies. It models the relationship of politics (difference) to the political (unity). Think of two parties before a court: they share an understanding of the sources and nature of the arguments to be made, and of the judicial role. More than that, they share a deep sense of what it is to do law, of how law configures the body politic, and of the role of law in our own self-understanding. Or so it used to be. Today, those parties may be fighting a war by other means: lawfare is not the same as the rule of law.
The judge modeled an ideal of citizenship as an expression of the political. Movement through the confirmation process was a rite of passage from politics to the political. The judge is appointed for life because he or she has been stripped of the particularity that defines difference. The parties before the court assert difference; the judge expresses unity. She is the self-governing citizen, whose political identity is inseparable from law. The judicial role is to persuade us to see through the form of law to the popular sovereign as the vital source of law. This is the movement from legality to legitimacy. The judge does her legitimating work when legal form is filled by the claim of the political. The judge’s role is to hold up that world in which the constitution can constitute.
As long as we hear that claim in the judicial voice, we can disagree endlessly on everything else. When we don’t agree on this, legal differences become just another site of politics. Absent contact with the political, the judgments of the courts may have the form of law, but they will lack legitimacy. They will not resolve conflict but exacerbate it, for decisions will be seen as politics set free of accountability[29].
The work of the Court is not to find an alternative source of electoral accountability, as if its problem is the counter-majoritarian difficulty[30]. The Court’s role is to sustain the belief that the people govern themselves through law. The constitution is whatever is required to sustain this belief.
IV. Patterns of the social imaginary
Because every interpretation derives its authority from the text, none has any more authority—as a reading—than its competitors. Authority to say what the law is comes from a different direction: it is the power of the sovereign to decide. Robert Cover called this power to decide a “juristpathic” force, for its function is to terminate the jurisgenerative quality of interpretation[31]. Two different interpretations of King Lear can go forward in simultaneous performances. There is no need to decide between them. In law, we often need a decision.
Yet, we must not think of sovereign power in a democratic order as if it were located in a particular institution. We are not looking for the modern analogy to the king. The fundamental commitment in a democracy is that the people are sovereign. The people have no permanent site. A democracy is a system of government in which sovereign power circulates in and through contests of representation. Sovereignty, no less than law, is a product of interpretation and persuasion. Habits of obedience may make us forget that sovereignty too is an interpretive practice that succeeds only when it persuades.
Whoever claims the power to decide, claims to speak as the popular sovereign. In American history, such claims to speak in the sovereign voice have been made by all three branches of government, by the states, by political movements, and by individuals. Each tries to naturalize its own claims, as in the Supreme Court’s famous statement in Marbury v. Madison that the judicial role is to say what the law is. That is their role, however, only as long as they can persuade the nation that they speak in the voice of the people.
The judicial opinion, accordingly, is doing two things at once. It is working in the dimensions of legality and legitimacy. It retains the sovereign power to decide the law only so far as it is successful in the latter.
It is not easy to produce or to maintain narratives of popular sovereignty. Imagine a reporter who obtained access to a draft of the constitution produced in Philadelphia in 1787. He finds a document that begins with the words, “We the people.” Who can claim to write in this voice? A small group of privileged white men meeting in secret in Independence Hall? It is easy to write, “We the people.” It is difficult to persuade an audience that they are hearing the voice of the people. Had the draft failed in the state ratifying conventions—surely a possible outcome—no one would have said “the people” had lost the vote to some other agent. Rather, the draft’s attribution of authorship would have been seen as a fiction.
The success of American constitutionalism is the movement from fiction to history. Again, this is the constituting work of the constitution. The people exist as a historical force only as long as they hear the claim of the political. To hear that claim requires belief in narratives that give an account of what the popular sovereign as a collective agent has done. These narratives of popular sovereignty generally take two forms: project and system[32]. Here, too, we find an analogical extension of Western monotheism—specifically its accounts of creation and providentialism.
Of a project, we ask who its author is and what design he or she has in mind. Projects address problems through the choice of a plan and a method of implementation. We measure means against ends, because the ends are representations that precede the work of the project and guide its realization. The project imagination gives us arguments from design, including a classic proof of the existence of God. Observing order, the narrative task of a project is to identify the author, the design, and the reasons for producing order in this way. Interpretive controversy can arise over any of these points.
Sometimes, we know the author of the project apart from the product. A legislature is like this; I can visit it without knowing anything about its legislative output. Sometimes, I only know the author through the product. Finding a text without an author’s name attached to it, I nevertheless imagine an author. For those who accept the argument from design, God is like this. So, too, are the sovereign people when they are imagined as the author of the constitution. We cannot visit the sovereign people as we can the legislature. Our only access is through the constitution of which we imagine them to be the author.
Narratives of system, on the other hand, imagine order without an author. Forget about the argument from design and think about an organism or markets. Systemic order is not imagined before it is deployed; it exists nowhere but in the phenomena that bear the order. Its origin is immanent; its appearance is spontaneous.
A system has identifiable principles—for example, legal norms— but those principles were not themselves the product of an intentional act. In a project, the idea of order precedes the facts; in a system, we discover the idea of order only among the facts. Projects produce products; systems reproduce themselves. To build and to grow are different organizations of temporal accounts. Think of the difference between legislation and the common law.
In a curious coincidence of history, 1776 marks the transformation of both project and system from theological to social accounts. Project had been the narrative of creation; system had been that of providentialism and theodicy. In 1776, both project and system take on a human scale. The American Declaration of Independence announces that politics can and should be a project. When a government fails to achieve the ends for which it is designed—life, liberty, and the pursuit of happiness—it can be abandoned and made anew. Constitutional construction becomes the most important human project—so much so that the idea of freedom is deeply politicized: we are free when we are self-governing, and we are self-governing when we are the authors of our own laws.
Yet, 1776 is also the year that Adam Smith published the Wealth of Nations. The market is the paradigm of a social system, and economics is the first science of the social. Smith describes those immanent principles of order that emerge spontaneously as individuals pursue their natural inclination to “truck, barter, and trade”. An economy displays lawful regularities—but they are not the product of a project. The remnants of project thinking—creationism—survive now only in the metaphor of the invisible hand.
The narrative of popular sovereignty in American life moves generally along the path from project to system over the course of the 19th century. Our earliest constitutionalism was a narrative of project. Revolution was imagined as the direct presence of the popular sovereign. That presence signals a legal indeterminacy in which existing claims of legal authority fail and new projects of law-making become possible. Revolutionary indeterminacy ends with the completion of a new project of law production, that is, with the making of the constitution.
The constitutionalism of project represents the author as an intergenerational, collective subject—We the People—that has always already acted to produce a legal text. The legitimacy of that project depends upon our continued identification with the popular sovereign who authors the law. There is, accordingly, a complicated relationship between the writers of the constitution and the authors of the project. The writers are only drafters, as a law clerk might draft an opinion for a judge. It is not the clerk’s opinion, because it is not his project. This is true even if he wrote every word of the opinion.
The project narrative, accordingly, demands a civic faith in participation in the popular sovereign. Absent this faith, constitutionalism can appear as someone else’s project. That “someone else” can be the founders or the Justices. Neither has legitimate authority to impose their projects upon us. We have not agreed to be governed by dead white men or Supreme Court Justices.
Alongside of this narrative of the people’s project there arises in the late 19th century a systemic account of the life and locus of the popular sovereign. On this account, American history has been a process of self-realization. The nation has been realizing the fullness of its own form by growing into itself. Its history has been its “manifest destiny”. The popular sovereign, on this view, has no place prior to or apart from the law.
To understand law, from the systemic point of view, we must look to what it is becoming. We focus on function, not design. This is the American people not as an agent who adopted a project, but as a living, national spirit working out its own meaning through cases and controversies. Think for example of a case that raises an issue of freedom of speech. Lawyers are trained to address the issue by looking to the precedents to find the immanent law of freedom of speech. The cases are understood not as an arbitrary collection of judicial decisions, but as the working out of the proper role of free speech in a democratic state. That immanent order is the law of free speech, which is a set of principles Americans are asked to support and defend as their own.
Accordingly, popular sovereignty on the systemic view is not located in a subject that steps in and out of history, but in the beliefs that constitute a common public opinion that lives in and through the rule of law. Self-government is less like a craft and more like a language: a language exits in the common usages of a people. If they stop speaking, the language dies. There is not some transcendent subject that provides language from outside. To imagine such a subject is to engage in mythological thinking; it is to reify as subject that which exists only as a network.
By the end of the 19th century, the systemic narrative of law brought together ideas of science, markets, civilization, and Christianity. Adopting the systemic perspective, Americans believed they stood at the “end of history”—that is, they had adopted an alternative myth of their own unity. Of course, not all Americans believed this. Many, including women and minorities, experienced legal order as subordination and coercion—that is, as someone else’s project.
These double narratives of popular sovereignty are the constituting work of the constitution. They are the resources available to the Court to move from legality to legitimacy. Belief in the popular sovereign can point to a transcendent source of creation or to an immanent presence. The Western god has always had this dual aspect. The viral character of the social imaginary reproduces this double character of sovereignty as it constitutes a political order that is both a gift we give to ourselves and home we find ourselves already occupying.
The rule of law as the coincidence of legality and popular sovereignty cannot survive the withdrawal of either form of faith. Absent belief in the project as our own, we find ourselves subjects of someone else’s project. Absent belief in the system, analogical reasoning fails and we lose our way. Both of these beliefs have fractured today.
V. Collapse of belief
The political can fall apart quickly or deteriorate slowly. More likely, it will gradually decline, without notice, until it reaches a point at which collapse is quick and noticed by everyone. American constitutionalism has followed this pattern: a steady decline and then a burst of destructive energy explicitly expressed in last year’s Dobbs decision overruling Roe v. Wade. That decision was simultaneously shocking and expected.
Dobbs, on my account, signifies the end of a world. It is the moment at which we can see clearly that the constitution no longer does its constitutive work. Some will say that law has never been anything other than politics by other means. Dobbs, for them, has the virtue of making this clear. The consequence, they hope, will be to move politics back to the domain of elections, where the voters—not a court—will make the decisions. There will be winners and losers, just as there have always been. But politics without the political is likely to deepen our polarization.
Dobbs has about it the feel of raw power and the intoxication of victory. Labelling Roe an “egregious error”, the Court’s majority would eliminate Roe from constitutional memory. Pursuit of an egregious error could only have been in bad faith. This is not the language of friendship. It is quite at odds with Roe’s own respectful acknowledgement of difference and the subsequent case law that tried to negotiate a middle position in the dispute over abortion.
Dobbs marks a victory for one side in a very long battle. To lay the map of the Confederate states of 1860 over the map of those states now enacting total or near total bans on abortion is to experience a shock: all of the states of the confederacy fall on the new map. Our new civil war, in short, looks a good deal like our old one. Women rightly wonder if their bodies are a new instantiation of the slave body: a site for the display of power in which protection of fetal life is only a symbol of cultural power. The collapse of Jim Crow—the legal system of black subordination that replaced slavery—did not occur until the Civil Rights Acts of the 1960s[33]. Roe was decided in 1973. It took only a few years to substitute the women’s body for the black body in support of a politics of resentment directed at the increasingly progressive direction of national institutions[34].
The constitutional expression of this resurgence of Civil War division was the rise of originalism: the same method of constitutional interpretation deployed in the 1857 decision, Dred Scott, holding a black person could not be a citizen[35]. Returning to originalism, the Court speaks as if the problem of legitimacy is that of judicial subjectivity: on what can the Justices rely, if the text has no single, objective meaning? Where can that objective meaning be found, if not at the site of the text’s original presentation to the public? Only a Court that no longer believes that the Constitution constitutes worries about objectivity in this way.
Dobbs relies on a concept of truth that substitutes objectivity for legitimacy, as if law could be a science. But there is no science of an interpretive practice; there is only mutual commitment to a practice of reason giving, and a faith in the political. The real question for the Court is “why choose to follow an interpretive practice of originalism?”
That originalism falls outside of the systemic imagination is not only obvious but is its very point. The systemic imaginary puts precedent at the center of the rule of law. The truth of law on this account is nothing apart from the immanent order working itself out in and through the cases, including Roe and its progeny. The originalist intervention of Dobbs ends 50 years of doctrinal development. More than that, Roe was tied architecturally to multiple areas of doctrine beyond women’s rights, including the dramatic expansion of gay rights in recent decades. Remove one stone and the entire edifice is at risk—a risk of which the Court is very much aware[36].
Dobbs appears to reject the systemic imagination of popular sovereignty in order to reclaim the project imaginary. Originalism, however, is a pathological form of the project imaginary, for it makes no effort to persuade citizens that the voice of the Founders’ generation is that of “We the People.” Originalism simply ignores the legitimacy problem that attaches to the constitutional project: to identify a transgenerational, transcendent source of law that expresses our collective agency. Absent that faith in the popular sovereign, originalism appears as an arbitrary—that is, undemocratic—reliance on the work of a small group of dead white males with only an external, causal relationship to contemporary citizens.
Absent belief in the intersection of the rule of law and popular sovereignty, we have no compelling explanation for the power of the Court. Indeed, absent belief in the political, the court is an illegitimate institution in a democratic order. It does not matter how closely it tries to bind itself to an earlier generation’s project, for it must first persuade us that the project is our own. The Court’s failure to persuade can be measured in the withdrawal of popular trust in the institution[37]. A pretense of objectivity will not fill the place of a lost legitimacy.
No less than anyone else making legal claims, the judge has the burden of persuading us. Absent persuasion, a court asserts legality without legitimacy. Doing so, it closes down the constitutional world. We are left with the bits and pieces of legality that no longer make sense. This form of power without friendship is inseparable from the threat of violence that accompanies populist authoritarianism. Originalism as a constitutional doctrine is the theory of which the January 6 insurrection is the practice.
Paul Kahn
Paul W. Kahn is the Robert W. Winner Professor of Law and Humanities at Yale Law School, where he directs the Orville H. Schell Center for Human Rights. He received his Ph.D. in Philosophy from Yale University, and his Juris Doctor (JD) from Yale Law School. From 1980 to 1982, he clerked for Justice White on the U.S. Supreme Court. Before joining Yale in 1985, he practiced law in Washington D.C., where he represented Nicaragua at the International Court of Justice. He teaches in the fields of constitutional law and theory, international law, cultural studies and philosophy. He has written extensively on constitutional law, political theory, and cultural studies. His latest publications are Origins of Order: Project and System in the American Legal Imagination (Yale University Press, 2019), Testimony (Cascade Books, 2021), and Democracy in America 2020 (Yale University Press, 2022).