Freedom and Time: A Theory of Constitutional Self-Government
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Should we try to live in the present? Such is the imperative of modernity, Jed Rubenfeld writes in this important and original work of political theory. Since Jefferson proclaimed that 'the earth belongs to the living', since Freud announced that mental health requires people to 'get free of their past', since Nietzsche declared that the happy man is the man who 'leaps into the moment', modernity has directed its inhabitants to live in the present, as if there alone could they find happiness, authenticity, and above all freedom. But this imperative, Rubenfeld argues, rests on a profoundly inadequate, deforming picture of the relationship between freedom and time. Instead, Rubenfeld suggests, human freedom, indeed 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.
acceptable interpretation, reads them in terms of an equality principle. We are here looking at the black codes as the paradigm case of the equal protection clause; Plessy’s attempt to paint those codes as violating a liberty principle fails entirely to do justice to the text in light of its paradigm cases. The paradigm case method captures Brown the way it ought to be captured: as an easy case, not only as a matter of morality, but also as a matter of interpretation. Brown was rightly decided
Comment on e´crit l’histoire (Paris: Seuil, 1971). The Age of the New 41 here and now—to stand on what works, to stand on his currency, his consumer goods, his present preferences, his present will. Thus does modern historicity ultimately erase itself. But what of the future-orientation, the utopianism and progressivism, so well-known in modern thought? The truth is that modernity does not have much of a future. It never did. To be sure, the modern age begins by proclaiming a new tomorrow, a
updating constitutional law to ensure that present popular will remains behind it, either by way of an interpretation that looks to present consensus or by way of legislative or plebiscitary overrides of constitutional decisions. But whenever constitutional law’s legitimacy is made to depend on conformity with present democratic will, the result is that the Constitution, to be fully legitimate, could no longer be a constitution at all. A legitimate constitution, where legitimacy has been deﬁned
these textual arguments in Marbury, although they ﬁgure in his opinion as afterthoughts, as supplemental supports “not entirely unworthy of observation,” rather than as grounds capable of bearing the weight of the decision. Is it embarrassing that an opinion so emphasizing the Constitution’s writtenness should so neglect the Constitution’s text? On the contrary: Marshall was right in according this secondary role to the textual arguments in favor of judicial review. The Supreme Court in Marbury
trivial indulgence, that he does wrong? Our tendency to rationalize, our capacity for self-deception, our general lack of character all conspire to make us highly unreliable interpreters of our own commitments. In this regard, constitutional commitments have an advantage over individual commitments. Written constitutionalism creates the possibility of delegating the interpretive power to a body of persons neither institutionally beholden to popular will nor vested with the power that